Protest Decisions

IN RE: JON LAWRENCE and AL OLIVER, 
Eligibility Decision 2000 EAD 19
Issued: September 8, 2000
OEA Consolidated Case Nos. E081801WE & E083103WE

On August 15, 2000, IBT Local Union 748 held its nominations for delegates and alternate delegates to the International convention at four meetings, two in Modesto California and two in Merced, California. At those meetings, Jon M. Lawrence, Sam Martinez, Frank Dickson, Wes Wheaton, Arturo Vigil, Rebecca Yanez, Juan Marquez, Jr. and Luis Bustamente were nominated to run for delegate and Jim Oliver and Al Oliver were nominated to run for alternate delegate.

By letter dated August 17, 2000, Jon Lawrence, a member of Local Union 748 and one of the nominated candidates for delegate, protests the eligibility of Messrs. Martinez, Dickson and Wheaton to run for delegate and the eligibility of James Oliver to run for alternate delegate. The protest was assigned file no. E081801WE. On August 31, 2000, the Office of the Election Administrator received a letter from Al Oliver, a member of Local Union 748 and one of the nominated candidates for alternate delegate in which he protests the eligibility of Messrs. Vigil, Marquez, Bustamente and Lawrence, as well as Ms. Yanez, to run for delegate. This protest was assigned file no. E083103WE.

Each protest alleges that the parties named are ineligible to run for delegate or alternate delegate pursuant to Article II, Section 2 (f) of the International Brotherhood of Teamsters Constitution, which states:

"Local Unions and other subordinate bodies are authorized through duly adopted By-law and with the approval of the General President, to place such specific limitations as the circumstances warrant on the rights of members who hold supervisory positions to participate in the affairs of their organizations, but such members shall not be permitted to hold office unless permitted by federal, state, local or provincial law."

The IBT Constitution does not, however, contain a definition of the terms "supervisory positions" or "supervisor" nor do the Rules. The National Labor Relations Act does include such a definition (29 U.S.C.A. § 152 [11]), stating that the term supervisor:

"means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances or effectively to recommend such action, if in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

Applicable case law is uniform in basing a determination of whether a person is a supervisor entirely upon the specific facts of the situation.

Receipt of Mr. Lawrence's protest initiated a protracted investigation into the factual basis for the allegations contained in his protest letter. Interviews were conducted with Mr. Lawrence, the parties whose eligibility he questioned, officials of Local Union 748 and representatives of some of the parties' employers. From these interviews, it appears that there is a practice in the industry of having skilled workers with both seniority and job experience act in a lead role and assist less experienced workers on the line. This practice is most prevalent during the peak seasonal times when employers "staff up" in order to process the seasonal crop output. Such (usually temporary) assignments in the job experiences of Messrs. Martinez, Dickson, Wheaton and James Oliver is the basis for Mr. Lawrence's protest.

The interviews revealed that the assignments characterized in Mr. Lawrence's protest as supervisory more resemble the duties of a "lead man" than a supervisor. The job duties as described by protester and charged parties alike are more akin to being a "group leaders" of a crew, rather than a "manager" of the crew. Each of the charged parties lacks the kind of authority in the area of hiring and firing, discipline and assignment that is a basic part of management authority. This is consistent with the case law which distinguishes between "supervisors" and "lead men," describing the former as sharing the power of management, while stating that the latter simply "exercise the control of a skilled worker over less capable employees."

Upon receipt of Mr. Oliver's protest, an interview with Mr. Oliver was conducted in which he admitted that the job functions performed by Messrs. Marquez, Bustamente and Lawrence and complained of in his protest letter are identical in nature to those characterized as supervisory in Mr. Lawrence's earlier protest; additionally, Mr. Oliver complains that because Ms. Yanez and Mr. Vigil hold elected office in Local 748, they have supervisory positions, which makes them ineligible to hold office. In this interview, Mr. Oliver agreed that this charge could not be maintained, for if his characterization was applied to all members of a local union's executive board, no incumbent union officer would be eligible to run for re-election.

Based upon the information gathered in the interviews, neither protest is meritorious.

Moreover, Article XIII, Section 2 (b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") requires pre-election protests, including those "regarding eligibility of candidates," to be filed "within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested."

This provision of the Rules is identical to Election Rules promulgated by court-appointed Election Officers in the 1990-1991 and 1995-1996 IBT delegate and officer elections. Now, as then, the requirement to promptly file protests is an important part of the election process. The short time limit was designed to ensure that alleged violations of the Rules are quickly brought to the attention of the Election Administrator in order to afford the greatest opportunity for applying an effective remedy in the event a violation is found.

The court appointed Election Officers of past elections have not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction. However, in the context of protests dealing with the eligibility of candidates, where there is little extra time to meet posting requirements, ballot printing and mailing schedules, little leeway has been afforded to protestors who fail to file within the period set forth by the Rules. See Murdoch, E-123-LU703-EOH (March 18, 1996)(eligibility protest held untimely where it had been filed three working days after protester knew of the candidate's nomination); Milne, E-071-LU155-EOH (January 31, 1996)(eligibility protest held untimely where it had been filed by fax after close of business on third working day after protester knew of candidate's nomination, not received until fourth working day); Mantucci, E-024-LU669-EOH (January 22, 1996); cf. Webb, E-031-LU763-EOH (January 24, 1996).

The investigation revealed that all of the parties were nominated as candidates at one of the two August 15, 2000 meetings in Modesto. In addition, both Mr. Lawrence and Al Oliver were present at a candidates' meeting occurring later in the afternoon, at which all of the parties nominated as candidates were announced. Therefore, as of August 15, 2000 both protesting parties became aware that Ms. Yanez and Messrs. Martinez, Dickson, Wheaton, Vigil, Marquez, Lawrence and Bustamente were nominated to run for delegate and Mr. Jim Oliver was nominated to run for alternate delegate.

Mr. Oliver's letter of protest was received by the Office of the IBT Election Administrator on August 31st, twelve working days after the date of the nominations meetings held by Local 748.

While Mr. Lawrence's protest letter is dated August 17, 2000, the origination markings printed by Mr. Lawrence's telefax machine on the face of his letter identify the time of transmission as August 18, 2000, at 8:46 p.m. Pacific Daylight Time. The fax transmission was, therefore, received in the Washington, D.C. office of the IBT Election Administrator just before midnight on Friday, August 18, 2000. The practical effect of the timing of the transmission was that processing of the protest would not begin until the following Monday, August 21, 2000, four working days after the date of the nominations meetings.

Accordingly, both protests are umeritorious and untimely under the Rules and are DENIED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one 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 Administrator 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 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 25 Louisiana, N.W., Washington, D.C. 20001, Facsimile (202) 624-8711. A copy of the protest must accompany the request for a hearing.

Sincerely,

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

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