Teamster Power, 2021 ESD 131
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: TEAMSTER POWER, ) Protest Decision 2021 ESD 131
) Issued: July 20, 2021
Protestor. ) OES Case No. P-141-051721-NE
____________________________________)
Teamster Power, a slate of candidates for International office, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). The protest alleged that Local Union 25, the O'Brien-Zuckerman 2021 slate, and Sean O’Brien, candidate for IBT General President, retaliated against BLET Division 57 by terminating its lease because some of its officers endorsed the Teamster Power slate.
Election Supervisor representative Peter Marks investigated this protest.
Findings of Fact and Analysis
Local Union 25 maintains offices in Boston MA. O’Brien is the principal officer of the local union and a candidate for IBT General President. BLET Division 57 held a month-to-month lease for office space from Local Union 25.
Division 57 secretary-treasurer William Keay endorsed Dennis Pierce for at-large vice president. Pierce is national president of the BLET and president of the Teamsters Rail Conference. He is a candidate on the Teamster Power slate. Keay’s endorsement of Pierce was posted on the Teamster Power Facebook page on March 20, 2021. On April 6, 2021, division legislative representative Daniel Cadogan’s endorsement of Pierce was also posted to the Teamster Power Facebook page.
In May 2021, Division 57 learned that its tenancy in Local Union 25’s offices had been terminated. The protest alleged that the termination was in retaliation for the endorsements Keay and Cadogan made of Pierce and the Teamster Power slate.
Investigation showed that the division’s monthly rental for a room within Local Union 25’s space was $180 and had been in existence at least 5 years. During the covid-19 pandemic, division officials rarely used the space. Further, it paid the rent irregularly. The division learned of the termination of its tenancy in May 2021 when it tendered its check for 5 months of rent (January through May 2021) and was informed to pick up the boxed contents of its space.
Local Union 25 representatives told our investigator that the local union terminated the tenancy because it needed the space for additional staff it was hiring. It produced a letter dated March 12, 2021 bearing the signature of principal officer O’Brien, which stated the following:
Due to space limitations, we have to regain the office you lease from us. If you are in need of an office or meeting hall in the future please let us know. We will try to accommodate your request.
Local union representatives explained to our investigator that, on March 12, 2021, it interviewed a candidate for a position it sought to fill and offered the candidate the position. It prepared the letter to Division 57 on the same date. Several days later, the candidate declined the offer, and the local union canvassed for additional candidates, finally hiring one in May. The new hiree was placed in the space previously occupied by Division 57.
A local union office clerical told our investigator that she mailed the letter quoted above to Division 57 at its Boston post office box on or about March 12. Digital properties of the Word and pdf versions of the document demonstrated that it was prepared and printed on or about that date. The address printed on the letter is that of Division 57. The clerical advised that the letter was not returned to the local union.
Division 57 representatives denied receiving the letter.
Retaliation for protected activity violates Article VII, Section 12(g) of the Rules. The Election Supervisor will find retaliation upon a showing that there was protected activity, that the respondent knew or was informed of the protected activity, that the respondent took action that may be regarded as adverse to the interests of the person or entity who engaged in the protected activity, and that a causal nexus exists between the protected activity and the adverse action. McNally, 2016 ESD 237 (June 7, 2016). Retaliation will not be found where the Election Supervisor concludes that the adverse action would have been taken in the absence of the protected activity. Pope, 2000 EAD 39 (October 17, 2000); Hoffa, P857 (September 11, 1996), aff’d, 96 EAM 234 (September 19, 1996). Miner, 2005 ESD 1 (May 27, 2005); Bundrant, 2005 ESD 19 (October 25, 2005); Zuckerman, 2010 ESD 2 (June 7, 2010); Bucalo, 2015 ESD 42 (October 19, 2015), aff’d, 2015 EAM 2 (November 16, 2015) (protestor was suspended from office for usurping executive board authority, not for protected activity); Matthews, 2016 ESD 187 (May 4, 2016) (retaliation protest fails on causation element, where local union discipline of elected steward was decided before nominations meeting even though not announced until after).
Here, Keay and Cadogan engaged in protected activity by making endorsements of a candidate and a slate of candidates for International office. However, we find no impermissible retaliation because of the absence of evidence that Local Union 25’s decision was in any way motivated by those endorsements. Local Union 25 established to our satisfaction that its decision to terminate the month-to-month rental was made more than a week before the earliest of the endorsements by a Division 57 representative. The digital properties of the document by which the local union sought to inform the division of its decision substantiated the timing of the local union’s decision. No evidence was presented that local union officials knew or should have known that Keay and Cadogan intended to endorse Pierce and the Teamster Power slate prior to the dates their endorsements were posted to the Teamster Power Facebook page. Finally, the rationale local union representatives stated for terminating the division’s rental is plausible.
For these reasons, we find no impermissible retaliation and DENY this protest.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(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
2021 ESD 131
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
braymond@teamster.org
Edward Gleason
egleason@gleasonlawdc.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
Scott Jenkins
scott@oz2021.com
Teamsters Local Union 25
sobrien@teamsterslocal25.com
Michael Feinberg
maf@fdb-law.com
Peter Marks
pmarks@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com