Brady et al, 2023 ESD 189
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: COLLEEN BRADY, ) Protest Decision 2023 ESD 189
LETITIA RAMIREZ ZIVALICH, ) Issued: May 25, 2023
and SHAWN ELLIS, ) OES Case Nos. P-207-032422-NA,
) P-208-032422-NA, P-214-032522-NA
Protestors. )
____________________________________)
This decision resolves the remaining 3 post-election retaliation protests filed by persons who were discharged from IBT employment on the same date the O’Brien-Zuckerman electees were sworn in as officers of the IBT. Two of the protestors here, Colleen Brady and Letitia Ramirez Zivalich, were employed by the IBT as International auditors, working under the auspices of the office of the IBT General Secretary-Treasurer. The third protestor here, Shawn Ellis, was employed by the IBT as Central Region Trainer in the Training and Education Department, a department organized under the office of the IBT General President.
In our previous decision concerning protests filed by 21 individuals who were employed directly by or under contract to the IBT as organizers, we found insufficient proof to support the allegation that they were discharged in retaliation for activity protected by the Rules. Accordingly, we denied those protests. Walker, 2023 ESD 188 (January 24, 2023), appeal dismissed, 2023 EAM 25 (February 28, 2023).
Regarding the post-election retaliation protests of Brady, Zivalich, and Ellis, the IBT provided a position statement and documentary evidence concerning the International auditors and trainer protestors in June 2022 but did not produce any witness for interview until 2023. At that time, the IBT made Rob Colone and Scott Hilton available to answer questions concerning the decisions to terminate auditors Brady and Zivalich. Similarly, with respect to the trainer Ellis, the IBT presented Brian Rainville and Will Petty as fact witnesses in February and March 2023. Interviews of all fact witnesses the IBT presented were conducted by the Election Supervisor and his representative, Jeffrey Ellison, with IBT counsel present. All interviews were conducted by video call.
The procedural history of the protests this decision addresses was recounted in Walker. After all 24 protests were filed in March and April 2022, the IBT moved for their dismissal, claiming lack of jurisdiction under the Rules to investigate and decide all of them, and further that many of the protests were untimely filed. The Election Supervisor denied the IBT’s motion in Brady et al, 2022 ESD 187 (May 16, 2022), concluding he had jurisdiction under the Rules to consider retaliation protests filed post-inauguration where the alleged motivation for the retaliation was protected campaign activity that occurred during the election campaign. The Election Supervisor also held that the protests either were timely filed or that sound prudential reasons justified waiving the Rules’ time limit for filing them. Election Appeals Master Jones affirmed the denial of this motion in Brady et al, 2022 EAM 24 (May 23, 2022).
Thereafter, OES sought evidence concerning the IBT’s motivations in terminating the employment of all 24 protestors. The IBT, through General Counsel Ed Gleason, responded with a position statement with respect to all 24 protestors and some documentation concerning all but trainer Ellis. The IBT produced Chris Rosell for interview with respect to the organizers. When OES requested supplementary information with respect to the organizers and the IBT’s evidence concerning the auditors and trainer, Gleason replied that he was no longer the attorney on these protests, and he referred OES to Mike Feinberg, a lawyer in private practice, for further action on the investigation.
As recounted in Walker, Feinberg refused OES’s requests for further documentation and witnesses with respect to the auditors and trainer. In light of the IBT’s position, OES consulted with the office of the United States Attorney for the Southern District of New York. As we said in Walker, the Final Order in United States v. International Brotherhood of Teamsters, 88 Civ. 4486, permits the United States to seek a court order compelling the IBT to comply with its commitments under the Final Order. Cooperation by the IBT with protest investigations arising under the Rules is an obligation to which the IBT committed in the Final Order. Such cooperation is an essential part of the democratic election process set out in the Election Rules. The Rules create a structure for “fair, honest, open, and informed elections,” and the protest procedure has been integral to that structure since the first IBT International Officer election in 1991. The office of the U.S. Attorney for the Southern District of New York undertook to prepare an application for an order compelling the IBT’s adherence to the Final Order. OES prepared a declaration and numerous supporting exhibits for that application. With the filing of the application looming, the Office of the U.S. Attorney contacted IBT counsel and advised him of that.
The U.S. Attorney’s Office was then contacted by Brian Kelly as attorney for the IBT on these protests. In addition to providing a further witness interview and documentation that formed the factual basis for our decision in Walker, Kelly produced all requested documents and witnesses with respect to the auditors and trainer.
The legal standard for evaluating retaliation protests. We provided the legal framework against which we evaluate retaliation protests in Walker. For ease of reference, we restate it here:
Our analysis starts, as it must, with Section 101(a)(2) of the LMRDA, which grants “[e]very member of any labor organization … the right … to express any views, arguments, or opinions,” including on union business and “on candidates in a labor organization election.” 29 USC §411(a)(2). Further, Section 609 of the Act prohibits a union or its representatives from actions “to fine, suspend, expel, or otherwise discipline any of its members for exercising any right to which he is entitled under the provisions of this Act.” 29 USC §529. Violation of these rights may be remedied by civil suit. 29 USC §412.
The foregoing provisions protect the membership rights of individuals, defined to include attending membership meetings, participating in the deliberations and voting upon business at such meetings, nominating candidates for union office, and voting in union elections.
The LMRDA does not, however, create or protect any right to hold union office by appointment under a union’s authority. The U.S. Supreme Court, in Finnegan v. Leu, 456 U.S. 431 (1982), held that “discharge from [appointed] union employment does not impinge upon the incidents of union membership, and affects union members only to the extent that they happen also to be union employees. We discern nothing in §609, or its legislative history, to support petitioners’ claim that Congress intended to establish a system of job security or tenure for appointed union employees.” 456 U.S. at 438. The court elaborated on its holding as follows:
We need not decide whether the retaliatory discharge of a union member from [appointed] union office -- even though not “discipline” prohibited under §609 -- might ever give rise to a cause of action under §102. For whatever limits Title I places on a union's authority to utilize dismissal from union office as “part of a purposeful and deliberate attempt . . . to suppress dissent within the union,” cf. Schonfeld v. Penza, 477 F.2d 899, 904 (CA2 1973), it does not restrict the freedom of an elected union leader to choose a staff whose views are compatible with his own. Indeed, neither the language nor the legislative history of the Act suggests that it was intended even to address the issue of union patronage. To the contrary, the Act’s overriding objective was to ensure that unions would be democratically governed, and responsive to the will of the union membership as expressed in open, periodic elections. See Wirtz v. Hotel Employees, 391 U.S. 492, 497 (1968). Far from being inconsistent with this purpose, the ability of an elected union president to select his own administrators is an integral part of ensuring a union administration's responsiveness to the mandate of the union election.
Here, the presidential election was a vigorous exercise of the democratic processes Congress sought to protect. Petitioners -- appointed by the defeated candidate -- campaigned openly against respondent Leu, who was elected by a substantial margin. The Union’s bylaws, adopted, and subject to amendment, by a vote of the union membership, grant the president plenary authority to appoint, suspend, discharge, and direct the Union’s business agents, who have significant responsibility for the day-to-day conduct of union affairs. Nothing in the Act evinces a congressional intent to alter the traditional pattern which would permit a union president under these circumstances to appoint agents of his choice to carry out his policies.
No doubt this poses a dilemma for some union employees; if they refuse to campaign for the incumbent, they risk his displeasure, and, by supporting him, risk the displeasure of his successor. However, in enacting Title I of the Act, Congress simply was not concerned with perpetuating appointed union employees in office at the expense of an elected president’s freedom to choose his own staff. Rather, its concerns were with promoting union democracy, and protecting the rights of union members from arbitrary action by the union or its officers.
456 U.S. 440-442 (footnotes omitted).
In Sheet Metal Workers v. Lynn, 488 U.S. 347 (1989), decided 7 years after Finnegan, the Court found that a union violated the LMRDA by dismissing an elected business agent in retaliation for statements he made at a union meeting in opposition to dues increase sought by a union trustee. In reaching this conclusion, the Court reaffirmed the rationale it stated in Finnegan for concluding that the LMRDA did not protect the employment rights of appointed (i.e., non-elected) union employees. Id. at 352-55.
The Rules, at Article XII, adopt the LMRDA’s Bill of Rights provisions as well as the provision prohibiting union discipline for exercising rights protected by the LMRDA. Through this article, protests alleging retaliation in violation of the LMRDA are cognizable under the Rules.
The Rules expand on LMRDA rights, however. Article VII, Section 12(g) provides that “[r]etaliation 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.” This provision is consistent with the LMRDA with respect to protection of a member’s rights against retaliation on account of that member’s speech and vote. The provision goes further than the LMRDA, however, because it also protects officers and employees against retaliation for exercising such rights.
Protest decisions rendered under the Rules over more than 30 years have recognized that the Rules protect against retaliatory conduct that the LMRDA does not reach. We summarized those decisions in Cobey, 2022 ESD 185 (April 5, 2022):
In contrast to the LMRDA, Election Appeals Master Conboy has instructed that “the Election Rules are broader than federal labor law and prohibit any retaliation relating to the exercise of members’ rights under the Rules, including the right to run for union office.” Wsol, 95 EAM 17 (October 10, 1995), affirming Wsol, P-095-IBT-CHI (September 20, 1995). Judge Conboy’s opinion rested on decisions of the Election Officer and Independent Administrator from the 1991 election. Thus, in Parisi, P-1095-LU294-PGH (December 2, 1991), the Election Officer observed that, “[n]ormally, an appointed labor organization official may be removed at will, even if the only basis for removal is the desire of the appointing officer to have ‘his own people’ around him,” citing Finnegan. However, the Election Officer and Independent Administrator held in the 1991 cycle that removal of even an appointed IBT member from his position with the union based on that member’s activities with respect to the 1991 IBT International Union officer election violated the Rules. As applied to protestor Parisi, his “removal as the appointed Sergeant-at-Arms would violate the Rules if his removal was based upon his activities on behalf of nominated IBT General President candidate Ron Carey.” See also Cremen, P-425-LU311-MID (March 11, 1991), aff’d, 91 Elec App 101 (March 19, 1991) (removal from steward position would violate Rules if motivated by delegate candidacy); DelGallo, supra (removal from sergeant-at-arms position would violate Rules if motivated by Rules-protected activity).
Retaliation prohibited by the Rules was found in Phelan, P-711-LU550-NYC (April 24, 1996), aff’d, 96 EAM 184 (May 6, 1996), where an appointed steward was removed from his position because of his candidacy for alternate steward in support of the Carey slate. The candidacy was characterized by the responsible union official as “embarrassing” to the local union leadership and a “conflict of interest” with the rest of the shop committee’s support for the opposing slate. The Election Officer held that, “[w]hile substantive labor law generally permits labor union officials to remove appointees for political reasons, the Rules do not, if such action is based on a member’s exercise of rights under the Rules,” citing Wsol, Parisi, and Cremen. Judge Conboy affirmed, declaring that the protestor’s “right to participate in the election process is protected by the Rules and cannot be the basis for any action against him.” The union official’s statements when removing the protestor “had an overt election component and a clear coercive purpose. They were therefore improper.”
In Hoffa, P-812-IBT-NYC (August 16, 1996), the IBT was found to have engaged in prohibited retaliation by refusing to hire a qualified person as full-time organizer, where the stated reason was that “some people think you’re a Hoffa person.” The Election Officer held that union officials may base employment decisions on “personality conflicts or political rivalry” but may not permissibly retaliate against a member seeking union employment because the member engaged in conduct protected by the Rules. The hiring official “had no legitimate reason to link [the applicant’s] chance at getting full-time employment with [his] electoral preference.” Doing so constituted prohibited retaliation.
In Bundrant, 2005 ESD 19 (October 25, 2005), aff’d, 05 EAM 4 (November 15, 2005), the IBT’s action in transferring hundreds of members out of a local union constituted prohibited retaliation, where the reason for the transfers was the local union principal officer’s candidacy in opposition to the Hoffa slate. Judge Conboy affirmed, holding that “the adverse action taken against [the principal officer] and his Local was in retaliation for that candidacy.”
Ending appointed positions because of mere political opposition does not necessarily constitute prohibited retaliation, however. In Wsol, supra, the IBT General President’s decision to remove a local union principal officer from an appointed position as chair of the Motor Carrier Labor Advisory Council was held not to violate the Rules. Noting that the retaliation prohibition of the Rules “does not prohibit retaliation for exercise of any use of free speech, but only for the exercise of rights guaranteed under the Rules,” the Election Officer found that Wsol was removed because he opposed the IBT’s efforts to end area conferences, to raise dues, to create a dedicated strike fund, and other initiatives. Judge Conboy concurred that removal of an appointee because of his opposition to IBT policy positions does not violate the Rules. In affirming the Election Officer’s decision, the Election Appeals Master rejected the IBT’s position, under Finnegan, that “any member appointed … to an important policy position may be replaced at any time and for any reason” – even retaliation. He reasoned to the contrary that “the Election Rules are broader than federal labor law and prohibit retaliation relating to the exercise of members rights under the Rules.” Judge Conboy concluded that “Mr. Carey did not replace Mr. Wsol because Mr. Wsol was a candidate for union office, but rather, because Mr. Wsol opposed Mr. Carey’s policies. Such an action by Mr. Carey does not constitute retaliation in violation of the Election Rules.”
Similarly, in Virtue, 2007 ESD 403 (July 9, 2007), the Election Supervisor found no retaliation where a member who stood as a candidate in the International officer election was removed post-election from his appointed position as International Representative. Building on the Election Officer’s reasoning in Wsol, the Election Supervisor found that Virtue’s “policy disagreements” as expressed during the campaign were of similar character to those Wsol expressed concerning the Carey administration. Just as the Rules did not prohibit Carey from removing Wsol from an appointed position for political reasons, so too the Rules did not bar Hoffa from removing an appointee who argued against the union governance positions the IBT administration was pursuing. Judge Conboy affirmed, concluding that the Rules’ retaliation prohibition distinguished “between ‘improper’ retaliation and benign retaliation of the type acknowledged by the United States Supreme Court [in Finnegan] as permissible in the context of a post election democratic mandate to the victors to, in their discretion, clean house of political opponents.” Virtue, 2007 EAM 82 (October 5, 2007). Judge Conboy noted also that nothing in the record suggested impropriety or corruption in connection with the removal. Absent proof that the removal would not have occurred “but for their adversarial campaigning,” the IBT had the right under Finnegan to remove Virtue as a purely political act.
Cobey, pp. 4-6.
As these precedents show, distinguishing cases in which adverse action does not violate the Rules from those where it does requires analysis of the factual basis for the employment decision. Thus, “the evidence must demonstrate that 1) the alleged victim engaged in activity protected by the Rules, 2) the charged party took adverse action against the alleged victim, and 3) the protected activity was a motivating factor in the adverse action.” Bundrant, 2005 ESD 19 at 10 (October 25, 2005), aff’d, 05 EAM 4 (November 15, 2005) (quoting Cooper, 2005 ESD 8 (September 2, 2005). The Election Supervisor will not find retaliation, however, if he concludes that the union officer or entity would have taken the same action even in the absence of the protestor’s protected conduct. Gilmartin, P32 (January 5, 1996), aff’d, 95 EAM 75. See Leal, P51 (October 3, 1995), aff’d, 95 EAM 30; Wsol, P95 (September 20, 1995), aff’d, 95 EAM 17.
Whether the evidentiary threshold a protestor must surpass in a particular case to establish retaliation is higher or lower depends, in part, on the nature of the employment position from which the protestor was discharged and the timing of that decision. On the former point, the union employer enjoys great discretion under the Rules in deciding whom to employ in policymaking positions and in positions where the incumbent is responsible for implementing key policy decisions. With respect to organizers, the Election Officer in Gasman, Case No. SR-02-IBT-EOH (May 25, 1999), held them to be representatives of “the General President’s policies to the rank and file, and the new General President is entitled to fill the position with those who he believes will represent him effectively.” On the issue of timing, the Gasman holding relied in part on the contemporaneous decision of Garrett, SR-03-IBT-EOH (May 20, 1999), which articulated the need to distinguish under the Rules between personnel decisions made immediately after a change in administration an election and those occurring in the midst of a campaign. Thus:
The Election Officer will afford the new administration more latitude now as it starts work and seeks to control IBT policy than the administration would or should have when the International officer election process is underway. Conduct that may pass muster in this immediate post-election context could very well be a Rules violation if it happened in the midst of a union-wide election. When a new administration starts, terminations and appointments may fairly be found to reflect policy choices: when an established administration in the midst of an election takes a job action, the conduct must be scrutinized strictly to determine whether it is being done to coerce members in the exercise of their political rights.
Garrett, at 5.
Gasman elaborated on this distinction, reasoning that:
Removal in furtherance of a policy objective, however, is different from taking a job action on account of a member’s participation (or failure to participate) in campaigning or other election-related activity. If these terminations and the restructuring of the Organizing Department had occurred while the union-wide election was going on and the facts showed an election-related political motive, the Election Officer could find retaliation and fashion a remedy. See Eckstein, PR-135-IBT-SCE (August 14, 1998).
These precedents provide the framework for evaluating the protests involving auditors Brady and Zivalich and trainer Ellis.
The evidence.
Brady. Colleen Brady has an extensive career with the Teamsters, ranging from employment with Local Union 25 and Joint Council 10 some 20+ years ago, and finally commencing work as an International auditor in 2018. During her time at Local Union 25, she met and interacted with Sean O’Brien before he became principal officer of that local union. Both were appointed to the executive board of Local Union 25 the same day. Neither supervised or directed the other’s work in that environment, and Brady left employment with the local union in 2006.
Under the IBT constitution, International auditors perform periodic audits of IBT subordinate bodies. Each audit typically runs over a period of weeks and involves detailed review of bylaws, financial books and records, and meeting minutes, among other things, for compliance with the IBT constitution. Years after she commenced employment in a Teamster local union, Brady was hired by the IBT to work as an International auditor. Some of the training she received for this position involved shadowing an established auditor as he/she performed an audit, to learn by observation. Early in her work as an auditor, Brady was assigned to shadow Scott Hilton on-site at a St. Louis MO audit. At dinner and while off-duty at the end of a day during that audit, early in the campaign period for the 2021 International officers election, Brady recounted to Hilton her opposition to Sean O’Brien’s candidacy for General President, referring to what she had learned as an employee of Local Union 25 when O’Brien also was employed there.
Although she made maximum financial contributions to candidates on the Vairma-Herrera slate, Brady did not otherwise take an active role in the International officer campaign, neither leafletting Teamsters in employer parking lots nor endorsing candidates for International office. As recounted to Hilton, however, Brady voiced her opposition to the election of O’Brien as General President.
During the transition period following certification of the winning candidates for International office, Rob Colone, an in-house lawyer at Local Union 89 in Louisville KY, General Secretary-Treasurer-elect Fred Zuckerman’s home local union, was tasked with reviewing the existing IBT staff supervised through the office of the General Secretary-Treasurer and making recommendations as to the employees who should be retained. He consulted extensively with Hilton with respect to International auditors, as the incoming administration designated Hilton to serve as lead International auditor. The two discussed Brady’s merit for retention.
According to Colone, Hilton told him that Brady did not have much experience as an auditor. Hilton corroborated that he made this statement to Colone. Both conceded, however, that the only experience Hilton had with Brady as an auditor was in the first month or two of her service in that capacity, on the St. Louis audit previously mentioned, while she was observing him perform the audit. Hilton told Colone that Brady was “not impressive” on that audit. Hilton conceded he had no experience observing or interacting with Brady while Brady performed an audit, stating further that he never provided any assessment, formal or anecdotal, to the manager of International auditors as to Brady’s qualifications or merit to serve in the auditor capacity. Brady continued to work as an International auditor and gain experience in that capacity until the date she was terminated in March 2022.
Colone stated that Hilton reported to him the discussion Hilton and Brady had about O’Brien’s candidacy for IBT General President. Hilton corroborated that he told Colone about that discussion. Hilton could not recall to us or to Colone any specifics as to Brady’s assessment of O’Brien, except that it was negative. Hilton told us that Brady’s statements were made at a time when O’Brien was a known candidate for General President, and they were made in that context.
Hilton’s recounting to Colone of Brady’s statements about O’Brien, even though they were not specific, nonetheless made an impression on Colone. He told us that “[i]f she didn’t like Sean O’Brien, I had concerns about her ability to work for the International if she had an outspoken beef with the General President.” Colone decided to ask O’Brien directly about the matter. He approached O’Brien during the transition and before any decision was reached about Brady’s continued employment. He described the exchange to us as follows: “‘Scott Hilton had made this comment.’ Did he [O’Brien] have any thoughts on it? And he didn’t make any sort of statements on it, other than in passing he may have just looked at me and walked away. I don’t recall him stating anything in particular. But he didn’t voice positive affirmation as well, so I guess I read into that as maybe she didn’t have a good experience with him previously.” Colone summed up O’Brien’s reaction to him as “non-responsive.”
In response to our additional questioning about his exchange with O’Brien, Colone stated: “Over the course of a few years, I’ve learned his body language and he got this, kinda like, smirk on his face [as if to say] ‘I’m not going to comment but my facial expression’ is what it was. In honesty, to me, I just, maybe I read too much into it, in retrospect, maybe not, maybe I was spot on, I believe I was spot on. I just had concerns about retaining Ms. Brady if she had vocalized her displeasure with the GP when he was in his position as leader of the Joint Council and Local 25.”
Colone said he reported his view of the situation to Zuckerman, who had authority over International auditors. Colone said he told Zuckerman “I had concerns based on this information. I didn’t have any corroboration – or even specifics – and it was my opinion that we should err on the side of caution and relieve her from her job.” Colone said Zuckerman agreed. Under Article VII, Section 7(a) of the IBT constitution, International auditors can be terminated from their employment at the recommendation of the General Secretary-Treasurer, with ratification by a resolution of the General Executive Board. Brady was one of two International auditors named in a GEB resolution adopted March 22, 2022, to be terminated from her position.
The IBT position statement filed in June 2022, some 9 months before the IBT produced any witnesses to us concerning Brady, stated that Brady and O’Brien “are both members of Local 25, where they previously worked together. Based on his knowledge of her work, General President O’Brien simply did not have the confidence that Ms. Brady could perform at the increased level and standard that he and his administration have set for all of the International Union staff, including the international auditors.” The IBT did not produce any witness to substantiate this statement, and Colone himself conceded that O’Brien did not tell him anything to that effect and, instead, was “non-responsive” on the question of whether Brady could perform her duties as International auditor at an acceptable standard. Further, Colone misunderstood O’Brien’s role at Local Union 25 during the period Brady worked there; he was not “leader of the Joint Council and Local 25” during her employment and never directed or supervised her work.
On these facts, we conclude that Brady engaged in protected activity by making statements to Hilton about O’Brien’s candidacy for IBT General President, that these statements were protected against retaliation by Article VII, Section 12 (g) of the Rules, and that Colone’s recommendation that she be terminated – a recommendation that was adopted by Zuckerman and the GEB – was based squarely on those protected statements. In reaching this conclusion, we find that Colone’s citing of Brady’s statement against O’Brien’s candidacy constituted direct evidence of retaliatory motive. See Phelan, supra (a statement that delegate candidacy was an “embarrassment” to local union leadership constituted direct evidence); and Hoffa, supra (the refusal to hire was attributed to the fact that “some people think you’re a Hoffa person,” which constituted direct evidence of retaliatory motive).
For these reasons, we find that Brady was retaliated against for protected activity in violation of the Rules, and we GRANT her protest.
Zivalich. Letty Zivalich has extensive experience in local union administration. Before becoming an International auditor, she was employed for a decade as an IBT field representative. In that capacity, she worked extensively in local unions around the country training TITAN operators, instructing office managers and clericals in QuickBooks, troubleshooting bookkeeping and TITAN problems for local union employees, and helping to train new and existing local union secretary-treasurers on the methods and means to administer their local unions, giving particular training with respect to the IBT constitution, local union bylaws, and the LMRDA. She was a key participant in the revision of the IBT’s local union secretary-treasurer’s manual, the guidebook for administering local union business operations. She helped to write, revise, illustrate, and/or prepare training materials on the IBT’s QuickBooks manual and TITAN manual and was a veteran trainer on those subjects at IBT conventions and Unity, Women’s, and joint council conferences, among others. With this extensive experience in proper local union administration, she was named an International auditor in May 2017 and in that role performed local union and joint council audits in the South and Central regions and served as a resource to other auditors in addressing unusual problems they discovered in various audits. Given Zivalich’s extensive experience with preparing or revising these manuals, she was called upon frequently to audit tough and problematic local unions and to consult with then-Legal Department Director Gary Witlen about them.
Zivalich is married to Josh Zivalich, principal officer of Local Union 769, Miami FL and an unsuccessful candidate for IBT South region vice president on the Vairma-Herrera slate. During the campaign, Zivalich supported and made monetary contributions to her husband’s campaign.
In the final few years before her termination, Zivalich was assigned to audit local unions in a territory consisting of Greater Chicago and downstate Illinois, Indiana, and eastern Missouri. Her IBT employment as International auditor was terminated on the recommendation of Colone, a termination that was ratified by GEB resolution (together with Brady’s) on March 22, 2022.
Colone told us that, in an effort to effect cost-savings to the IBT, the audit function was regionalized such that auditors would be assigned to local unions and joint councils in the IBT regions in which they lived. The cost-savings the IBT expected to realize with this approach was in travel expenses, particularly by dispensing with the cost of air travel and car rental if the auditor lived close enough to drive to the audit location. In addition, proximity could also result in saved hotel expense if the audit site was local to the auditor’s residence. Colone stated that Zivalich’s residence in Miami FL meant that every trip to the IBT Central region meant airfare, car rental, and hotel expense. He stated further that replacing Zivalich with a Chicago-based International auditor meant substantial cost-savings to the IBT.
The determination that Zivalich should not be assigned to audit subordinate bodies in the Central region did not, of itself, warrant her dismissal, a point Colone conceded, as she could perform audits in the IBT’s South region in closer proximity to her residence. Colone stated, however, that she was less qualified than Brian Hairfield, who was appointed International auditor in April 2016, 13 months before Zivalich was granted the title. Hairfield’s previous experience was as a local union principal officer in a one-employer local union in eastern North Carolina. He had no experience as an IBT Field representative or trainer and author with respect to the secretary-treasurer’s manual or QuickBooks or TITAN manuals.
The IBT South region consists of local unions and joint councils in Florida, Georgia, South Carolina, North Carolina, Tennessee, Alabama, Mississippi, Louisiana, Texas, and Oklahoma. Colone stated that Hairfield was expected to drive to local unions in the Carolinas, Georgia, and northern Florida but conceded that all audit sites south of Orlando FL and west of Georgia would require air travel for Hairfield. In contrast, Zivalich would drive to all audit sites in Florida, including those beyond the driving range of Hairfield, and fly to most of the same local unions to which Hairfield would also fly. As such, little to no cost-savings would be realized in retaining Hairfield over Zivalich to service the South region.
Nonetheless, Colone opted for retaining Hairfield over Zivalich, stating the “fact that Hairfield had been doing audits in the Southern region – he was already in that area – with the experience and the flexibility of travel because of the automobile and his proximity – yes, it was a no-brainer for me.” Hilton concurred that Hairfield had more experience than Zivalich, apparently basing his concurrence solely on time-in-grade in the International auditor title. Hilton agreed that a local union that follows the secretary-treasurer’s manual and QuickBooks and TITAN manuals carefully in all respects will have a clean audit (although, he stated, “I’ve never seen it happen”), yet Zivalich’s extensive experience on the ground in local unions with training and instructing their officers and employees in proper local union administration apparently did not weigh in Hilton’s assessment of Zivalich’s experience.
Where Colone stated two reasons for retaining Hairfield over Zivalich – experience and travel savings – the IBT’s position statement, submitted in June 2022, identified a third. It read as follows:
Additionally, Ms. Zivalich is married to a former Southern Region Vice President candidate from the Teamster Power slate. Ms. Zivilich [sic] was a known and obvious supporter of her husband, a political rival who, through his slate, was endorsed by the outgoing administration and its leadership. It is not surprising that the new administration was unwilling to risk the possibility that Ms. Zivalich would not perform her job as an international auditor with the necessary degree of discretion, and it is not surprising that the new administration would be concerned that she would disclose sensitive and confidential information to individuals outside the administration. Elected officials of the IBT are not prohibited from taking an appointed official’s/employee’s known views on union politics into account when deciding if that official/employee should continue in a job, particularly with regard to an auditor position that includes access to confidential and sensitive financial and personal information. In so doing, however, it must be noted that the new administration did not in any way interfere with Ms. Zivalich’s right to campaign, support or vote for her husband or anyone else.
We questioned Colone about the IBT position statement. He denied – “absolutely not” – that Zivalich’s marriage to a candidate on the losing slate played any role in the decision not to retain her, denying that it was even discussed. He further contradicted the position statement by stating that he had no concern that Zivalich would fail to demonstrate the discretion or respect for sensitive or confidential information that the auditing job required or that she might disclose such information outside the administration. Colone stated that he became aware of the IBT position statement the day it was submitted but after it had been sent. When he saw it, he stated he asked General Counsel Gleason why the statement quoted above was made, but he received no satisfactory response. Colone stated he told his boss, General Secretary-Treasurer Zuckerman, about the statement, and Zuckerman replied to him, “We’ll clean it up.” However, no action has ever been taken by the IBT to amend or retract the statement it submitted in response to Zivalich’s protest. Further, Colone did not seek to correct the statement on his own initiative when interviewed, instead discussing the IBT position statement only when we raised it and questioned him directly about it.
We regard the IBT position statement as a statement against interest. It states explicitly that a reason that made a difference in the decision to terminate Zivalich’s IBT employment was her marriage to and campaign support for her husband, an unsuccessful opposition candidate for International office. That this statement was never withdrawn or amended demonstrates that it remains an explanation for the dismissal. Such explanation effectively concedes with direct evidence that Zivalich was terminated in retaliation for protected activity. See Phelan, supra, and Hoffa, supra.
Even without the IBT’s position statement expressly stating that her political support for an unsuccessful candidate required that she be jettisoned from IBT employment, we would conclude that the IBT has not rebutted the inference Zivalich raised that she was terminated for protected activity. As demonstrated above, the two reasons cited by Colone for retaining Hairfield over Zivalich to audit South region subordinate bodies do not withstand scrutiny. The cost-savings rationale is not substantiated where the evidence shows that Hairfield and Zivalich each would have to fly to roughly the same number of audit locations in the region. Further, Zivalich has demonstrably superior experience, knowledge of subject matter, and demonstrated ability to educate on key concepts of local union administration when compared with Hairfield. For these reasons, even in the absence of the IBT’s statement against interest, we would conclude that the IBT’s stated reasons for dismissing Zivalich – cost-savings and experience – are not supported by evidence and are therefore pretextual.
For these reasons, we find that Zivalich was retaliated against for protected activity in violation of the Rules, and we GRANT her protest.
Ellis. Shawn Ellis was a trainer employed in the IBT Training and Education Department and was assigned to the Central region for all periods relevant here. In that capacity, he prepared and presented training sessions at local unions and joint councils in that region. Frequently, he trained union stewards, the front line of contract enforcement in the workplace. His training emphasized the requirements of the job – knowledge of what is permissible and impermissible under the contract and existing practice, recognizing the difference between a grievance about an impermissible employer practice and a gripe about an issue a rank-and-file member simply does not like, the need to investigate issues thoroughly to properly determine them to be valid grievances, the obligation to file and process grievances promptly, to communicate well with other stewards and the business agent to insure that contract violations are remedied promptly, and the need to educate rank-and-file members to be the eyes and ears of the steward in the workplace. Ellis stated that he tailored his steward trainings to be accessible to first-time stewards and also interesting to veteran stewards.
Ellis also developed and presented advanced training sessions on negotiating and settling grievances. He helped to develop and present multi-day, sophisticated trainings – so-called Teamster Academies – on such subjects as collective bargaining and corporate campaigns. His former boss, Cindy Impala, told our investigator that Ellis performed well as a trainer, with the ability to reach his audience and retain their interest. Impala stated that in the years Ellis worked for her, she received only positive feedback on his performance, demeanor, and skill as a presenter.
Ellis was terminated March 22, 2022. He filed a protest alleging that his termination was because of his campaign activity. Ellis is a member of Local Union 1038 in Detroit MI. Its principal officer, Greg Nowak, was a candidate for IBT vice president on the Vairma-Herrera slate. Ellis contributed the maximum amount permitted by the Rules to candidates on that slate; he made an additional contribution to the slate’s legal and accounting fund. No other evidence was submitted of political activity by Ellis in connection with the 2021 IBT International officers election.
The IBT presented Brian Rainville as a witness. Rainville currently serves as Executive Assistant to the General President, a position he has held since the new administration took office on March 22, 2022. He previously served as campaign manager of the O’Brien-Zuckerman slate. Following the slate’s victory, he worked on the transition team which was tasked, among other things, with determining which IBT employees to retain. Rainville recommended that Ellis be terminated, and his recommendation was adopted.
Rainville told us that he and several others served on a committee of sorts to review categories of employees across multiple departments for retention or dismissal. In the training department, he stated that none on the committee knew any of the existing trainers, with one exception: Rainville knew Ellis.
With some two decades of Teamsters experience, Rainville’s resume included service as an International representative assigned to Joint Council 25 in Chicago IL. He served there for several years beginning in or around 2007 and in that role had occasion to see and interact with Ellis when Ellis conducted training sessions at the joint council. Rainville’s sole experience with Ellis was on steward trainings – he did not have occasion to see him perform in Teamster Academies or other advanced trainings. Rainville stated that he attended 2 or 3 steward trainings in the years he worked at the joint council and found them boring. He stated that Ellis was a very nice person, cordial, and polite, but he was not a dynamic speaker. Rainville views steward trainings as means to excite stewards about the importance of their jobs; he said that Ellis’s trainings did not accomplish that. When Rainville was asked whether Ellis’s trainings included evaluation forms for the audience to complete and submit following the session, he said they did but, unprompted, stated his opinion that they had no value as attendees routinely gave 5’s (the maximum score) for all categories without thinking critically about the rating, and only rarely added written comments.
Rainville stated that he had seen effective and engaging trainings done by others, but all he was able to identify had been led by professors in university labor studies programs.
Aside from his direct observation of Ellis’s trainings at Joint Council 25 in the 2009-2015 timeframe, Rainville had no further information about his performance in more recent years, whether from formal evaluations in his personnel record, communications transmitted to the IBT Training and Education Department commenting anecdotally on his performance, interviews of Ellis’s co-workers or supervisors, or comments of others who had attended his trainings.
Rainville stated that he knew Ellis was from Vairma-Herrera slate candidate Greg Nowak’s local union and believed that Ellis supported that slate. Rainville denied that such support played any role in his decision to recommend Ellis’s dismissal.
The IBT presented a second witness, Will Petty, regarding Ellis’s performance as a trainer. Petty too was employed by Joint Council 25 during a tenure running from 2009 to 2017, most of the time in a position subordinate to Rainville. Petty now serves as IBT Director of Strategic Initiatives and reports to Rainville. While working at Joint Council 25, Petty interacted with Ellis. In his OES interview, Petty’s evaluation of Ellis echoed Rainville’s statements: He stated that Ellis’s trainings were boring, did not change from year-to-year, and that Ellis used newsprint-sized flip charts to illustrate his points, a low-tech presentation method that Petty considered outdated.
Petty had no role in the IBT’s decision to terminate Ellis. He did not work in any Teamster capacity from 2017 until the new administration took office in March 2022. He was called solely as a historical witness concerning Ellis’s performance as a trainer.
The IBT presented Petty to explain a thank you letter Petty had written to Ellis following a 2011 steward training at Joint Council 25. The letter enclosed the evaluation forms attendees had completed. The letter read in pertinent part as follows:
Brother Ellis:
On behalf of Teamsters Joint Council 25 President John T. Coli and our entire Executive Board, I’d like to thank you again for conducting our Annual Stewards Training on October 1, 2011. As you know, we had tremendous participation from our local affiliates, and we couldn’t have been happier for you to be in front of the class.
As you will discover from the enclosed evaluation forms, members were impressed by your leadership and absorbed a lot of information from the seminar. Please feel free to keep these forms and use them as you see fit.
… Again, thank you for your time and experience. We look forward to the successful trainings yet to come.
Petty told us that this letter reflected an ongoing program by Joint Council 25 to curry favor with the International Union. He stated that it was important to express gratitude to the IBT for services it provided so that the joint council would be well-positioned to request (and receive) services in the future. The letter on its face was addressed only to Ellis. No copy recipients – including Ellis’s boss Impala or any other person in the Hoffa administration – were listed.
Petty denied that the letter, written at a time when Rainville was serving at the joint council, contradicted or undermined Rainville’s statements about the shortcomings of Ellis’s performance. Instead, Petty said that the letter’s statements did not reflect his observations, but were made to present Joint Council 25 as an appreciative subordinate body.
Following Petty’s interview, we obtained a second communication he wrote, an email to Impala on September 4, 2014, nearly 3 years after the previous letter to Ellis. The email announced the scheduling of steward trainings in downstate Illinois and the Chicago area on consecutive Saturdays in October 2014. Petty’s email continued: “We are requesting the services of Training Coordinator Shawn Ellis to assist Joint Council 25 with these important trainings. Shawn has been an asset to Joint Council 25’s programs and trainings for many years and we would appreciate his presence on the aforementioned dates.”
We presented the September 2014 email to IBT counsel and asked for a response, either by him on behalf of the IBT or by producing Petty again. We left the form of the response to counsel’s determination. Counsel responded in pertinent part with the following:
We conferred with Mr. Petty, who confirmed that the 2014 email from him to Cindy Impala (the “2014 Email”) is properly understood in the same way as his letter to Mr. Ellis enclosing evaluations (which was discussed during his interview). Specifically, the 2014 Email was essentially a standard, boilerplate communication from Joint Council 25 (“JC25”) to the International Union designed to maintain and/or curry favor.
Moreover, the International’s Education Department was regionally structured at that time. Mr. Ellis was the trainer for the Central Region, which includes JC25, and was therefore the only realistic option if a trainer was to be sent from the International. In other words, it would not have been feasible—given the purpose of the communication and the structure of the entities involved—for the 2014 Email to have requested that anyone other than Mr. Ellis be sent to conduct training. For these reasons, the 2014 Email is not a reliable indicator of Mr. Petty’s impressions of Mr. Ellis’ abilities as a trainer (then or now).
Unlike the protests of Brady and Zivalich, where we have determined through direct evidence that their terminations from employment were in retaliation for their campaign activity, no such direct evidence has been presented that Ellis was terminated as an act of retaliation. Instead, Ellis alleges that he supported the Vairma-Herrera slate and seeks an inference that such support caused his termination upon the inauguration of the new administration.
The facts of Ellis’s support for the Vairma-Herrera slate (Rules-protected activity) and of his termination immediately after the officer inauguration (adverse action) are not disputed. These two elements are sufficient to support an inference of causation, and to shift the burden to the employer to articulate a legitimate non-retaliatory reason for the dismissal. If the employer articulates such a reason, we evaluate all the evidence and circumstances to determine whether a nexus or connection exists between the decision to discharge and the protected activity. In Walker, supra, we concluded that the reason the employer, through its new organizing director, articulated for dismissing the organizer protestors was credible. We wrote: “the evidence establishes that the decisions were motivated by Rosell’s desire to assemble an organizing corps he believed would be most effective, based on their skills, abilities, and experience. On this evidence, the protests fail.”
To explain Ellis’s dismissal, the IBT presented Rainville’s assessment, buttressed by that of Petty, that Ellis performed poorly as a trainer, that his trainings were boring, rote, uninspiring, unchanging from year to year, and an unsatisfactory effort to engage stewards to perform their best as the union’s front line at the job site. That assessment, if credited, could constitute a legitimate non-retaliatory reason for the termination (even though the assessment was based on ten-year-old observations). But evidence contemporaneous to the training sessions that Rainville referenced undercuts Rainville’s current statements. Petty’s 2011 letter to Ellis – purporting to reflect Joint Council 25’s view – praises Ellis’s performance (“we couldn’t be happier for you to be in front of the class,” “members were impressed by your leadership and absorbed a lot from the seminar,” “[w]e look forward to the successful trainings to come”). Petty’s 2014 email requested Impala to send Ellis to trainings: “Shawn has been an asset to Joint Council 25’s programs and trainings for many years and we would appreciate his presence.”
The IBT’s position on this rebuttal evidence is that these were “designed to maintain and/or curry favor” for Joint Council 25 with the IBT. This argument does not withstand scrutiny. First with respect to the 2011 letter, Ellis is the only listed recipient. He is a line trainer and not in a position organizationally at the IBT to initiate or influence any favor the joint council might wish the IBT to bestow upon it. Were currying favor a purpose of the letter, Petty would have made a point to send it to Impala or someone in the Hoffa administration with authority. There is no evidence Petty did that.
The IBT’s current characterization of the 2014 email is also unpersuasive. While it is addressed to Impala, Ellis’s boss, the praise is unexpectedly effusive given the reality that the only trainer the IBT could possibly send to do steward trainings in Joint Council 25 at that time was Ellis – unexpected praise unless, of course, Petty meant it.
We so find. We conclude that Ellis’s performance at the training in 2011 prompted the “thank you” letter that Petty produced on behalf of Joint Council 25, and the 2011 performance and those that followed prompted him to send the 2014 request that Ellis – “an asset to [our] programs and trainings” – be assigned to upcoming ones. Were Ellis’s performances as Rainville and Petty portrayed them to us, we conclude that Petty would have expressed simple thanks and not added special praise (e.g., “we couldn’t have been happier for you to be in front of the class”). Or, if Ellis was actually an ineffective trainer, Petty or Rainville could have concluded that the joint council should provide its own trainer for the seminars and skip Ellis. That they did neither supports the conclusion that Ellis performed satisfactorily and undercuts their current claim that he was or is deficient.
The burden on the IBT to articulate a legitimate non-retaliatory reason for its action is not onerous. The evidence that the IBT apparently had available, and on which the IBT chose to rely, looked to witnesses’ current recollections of training sessions they saw Ellis conduct a decade (and more) ago. And praise for Ellis contemporaneous to those training sessions undercuts the witnesses’ present-day, very different assessment of that work. Based on Petty’s contemporaneous communications about Ellis’s performance, when all the evidence is considered, we conclude that the IBT has failed to establish actual poor performance by Ellis as its articulated legitimate non-retaliatory reason for Ellis’s dismissal.
For this reason, we find that Ellis’s dismissal was in retaliation for his protected activity and GRANT his protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process. “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.” Hailstone & Martinez, 10 EAM 7 (September 14, 2010).
We order the IBT to offer reinstatement to Colleen Brady, Letitia Ramirez Zivalich, and Shawn Ellis to the position each held at the time the IBT discharged them, to expunge their employment records of any reference to the dismissals protested here, and to restore their seniority without break in service associated with these dismissals. The particulars of this order are as follows:
- Each reinstatement offer must be in writing, transmitted by email to each protestor, with copy to OES, and must identify the particular region to which the protestor will be assigned upon reinstatement.
- If Brady is to be reinstated as International auditor in any area other than the Greater Washington DC and New Jersey area she previously held, the reinstatement offer must articulate a reason for the change in territory.
- If Zivalich is to be reinstated as International auditor in any area other than the IBT South region, the reinstatement offer must articulate a reason for the change in territory.
- If Ellis is to be reinstated as Trainer in any area other than the IBT Central region, the reinstatement offer must articulate a reason for the change in territory.
- We direct that each protestor must reply to the reinstatement offer no later than the end of the seventh calendar day after it is received, or reinstatement is waived. Waiver of reinstatement does not waive back pay or health and welfare and pension contributions ordered in points 4 and 5, respectively, below.
- We direct that employment resulting from an accepted offer of reinstatement must commence no later than seven days following the date the offer of reinstatement is accepted, or an earlier date by mutual agreement.
- We further order the IBT to pay back pay to each protestor calculated from date of dismissal through date of reinstatement or the date reinstatement is waived, at the pay rate at which the protestor was employed when dismissed, as improved by any increases such as COLA, step increase, and the like, the protestor would have received had dismissal not occurred, LESS any and all compensation for salaried or hourly employment the protestor actually earned during the period between discharge and reinstatement or waiver of reinstatement. The IBT shall present its back pay calculation, and each protestor shall present a statement of interim earnings, with satisfactory proof of same, within seven days of date of reinstatement or waiver of reinstatement, and the IBT shall remit payment of back pay to each protestor within seven days thereafter.
- We further order the IBT to make each protestor whole with respect to health and welfare and pension contributions. The IBT shall present its calculation for such contributions to the protestor within seven days of reinstatement or waiver of reinstatement.
- Disputes between the IBT and any individual protestor concerning the calculation of back pay and/or health and welfare or pension contributions shall be resolved by the Election Supervisor, on the application of either party.
This order is strictly remedial and is intended to make the protestors whole for the harm they suffered as the result of the Rules violations found.
This order is effective on the expiration of the appeal period, and all time limits established in this order are calculated from that date. Any application for stay of this order must be made to the Election Supervisor no later than the date the right to timely appeal expires under the Rules.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within three (3) working days of receipt of this decision. Any party requesting a hearing must comply with the requirements of Article XIII, Section 3(i). All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Barbara Jones
Election Appeals Master
IBTappealsmaster@bracewell.com
Copies of the request for hearing must be served upon the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, all within the time prescribed above. Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Barbara Jones
2023 ESD 189
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Ed Gleason, General Counsel
International Brotherhood of Teamsters
egleason@teamster.org
Mike Feinberg
maf@fdb-law.com
Brian Kelly
bkelly@nixonpeabody.com
Patrick Szymanski
szymanskip@me.com
Will Bloom
wbloom@dsgchicago.com
Tom Geoghegan
tgeoghegan@dsgchicago.com
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Colleen Brady
Letitia Ramirez Zivalich
Shawn Ellis
Jeffrey Ellison
EllisonEsq@gmail.com