Gonzales, 2019 ESD 389

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: KENNY GONZALES,                    )           Protest Decision 2019 ESD 389

                                                                        )           Issued: April 26, 2019

            Protestor.                                           )           OES Case No. P-035-081715-FW           

____________________________________)                      

This compliance matter arose from our decision in Gonzales, 2016 ESD 358 (December 30, 2016), where we found that Local Union 439 member Kenny Gonzales was removed from an appointed steward position in violation of Article VII, Section 12(a) because he exercised the right protected by the Rules to stand for delegate.  We ordered him restored to the steward position and granted the same rights and benefits of such status as he would have enjoyed had he not been removed.  Election Appeals Master Roberts affirmed the decision in all respects.  Gonzales, 2017 EAM 38 (January 24, 2017).  Thereafter, Local Union 439 complied with the decision by restoring Gonzales to a steward position, posting a notice to that effect, informing the employer of Gonzales’s status as a steward, and resuming the payment of Gonzales’s monthly dues at local union expense, as is the policy for all stewards in that local union. 

Some two years later, on January 28, 2019, Gonzales asserted that the local union was violating the reinstatement order.  We investigated as a compliance matter.  Our investigation found that local union principal officer had removed Gonzales from his steward position, pursuant to his right to do so under local union bylaws.[1] In his letter to Gonzales announcing the decision, principal officer Ken Guertin stated that the removal was “for failing to perform your duties in the best interest of the membership.” Guertin relied on information provided him by Geoff Donnelley, the local union business agent with whom steward Gonzales interacted.  However, Guertin did not investigate with Gonzales to ascertain whether the information Donnelley provided was factual.  As a result, we returned the matter to Guertin and directed him to meet with Gonzales to investigate whether Gonzales’s performance as steward warranted removal from his position.  Gonzales, 2019 ESD 388 (March 25, 2019).  Guertin did so, meeting with Gonzales on April 1, 2019.

Following the Guertin-Gonzales meeting, Guertin prepared an 8-page report to the Election Supervisor with 10 supporting exhibits.  The report listed 11 reasons for removing Gonzales.  Much of Guertin’s report asserted that Gonzales failed to attend several categories of meetings or hearings over an extended hearing and failed to communicate with business agent Donnelley about these absences.  In addition, Guertin’s report claimed that Gonzales filed grievances for violations of the contract that sought that contractual penalties be paid to himself.

In a 3-page rebuttal letter, Gonzales disputed each of Guertin’s findings, placing the blame on Donnelley for a failure to communicate effectively and to perform his business agent responsibilities competently.  In particular, Gonzales asserted that Donnelley informed his stewards to appear at meetings and hearings only when directed, and that most of the time, Donnelley did not direct Gonzales to appear.  In particular, Gonzales stated that Donnelley either settled grievances Gonzales had initiated without notice to Gonzales, or he did not notify Gonzales to attend labor-management meetings at which the grievances would be discussed and then delayed consideration of the grievances because Gonzales was absent.

We see it as beyond our authority here to determine whether Guertin’s removal of Gonzales was for cause or just cause.  Rather, our province is the Rules.  As we noted in our original decision on this dispute, Gonzales, 2016 ESD 358 (December 30, 2016), Article VII, Section 12(g) states that:  

Retaliation 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.

To establish a violation of this section, “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 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.

            Local Union 439 complied with our decision by reinstating Gonzales.  He served as steward for more than 2 years following reinstatement.  Guertin as local union principal officer retains authority under local union bylaws to remove stewards with or without cause, as limited under the Rules only by Article VII, Section 12(g).  The evidence developed during the compliance investigation establishes, at a minimum, a dysfunctional relationship between Donnelley and Gonzales.  Whether one is more responsible than the other for this relationship is an inquiry that might be explored if the standard we enjoined to apply was that of just cause for removal.  That relationship, regardless its source, clearly informed Guertin’s decision to remove Gonzales.

Where, as here, we may properly consider whether Guertin removed Gonzales because of Gonzales’s steward candidacy or his access to the protest machinery of the Rules in 2015, we find no evidence to support such a conclusion, principally because of the lengthy period of compliance with our decision, where Gonzales was permitted to serve – and did serve – as a steward.

Accordingly, we DISMISS this allegation of non-compliance.

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.  The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Supervisor in any such appeal.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:       Kathleen A. Roberts