Protest Decisions

IN RE: LARRY LIBBY,
Eligibility Decision 2001 EAD 223
Issued: March 8, 2001
OEA Case Nos.: E022615NE

On February 18, 2001, Local 25 held its nomination meeting for delegate and alternate delegate elections. On February 26, 2001, Arthur Snow, a Local 25 member, filed a protest claiming that Larry Libby was ineligible to run as a delegate. Snow's protest is timely because he filed it within two working days of February 22, 2001, the date that he "reasonably became aware" that Libby was nominated by reading of his nomination on a union bulletin board.

Election Administrator representative Lois M. Tuttle investigated this protest.

Article VI, Section 1(a) of the Rules provides:

To be eligible to run for any Convention delegate, alternate delegate or International officer position, one must:

(1) Be a member in continuous good standing of the Local Union, with one's dues paid to the Local Union for a period of twenty-four (24) consecutive months prior to the month of nomination for said position with no interruptions in active membership due to suspensions, expulsions, withdrawals, transfers or failure to pay fines or assessments;

(2) Be employed at the craft within the jurisdiction of the Local Union for a period of twenty-four (24) consecutive months prior to the month of nomination; and

(3) Be eligible to hold office if elected.

Snow contends that that Libby is ineligible because Libby holds the position of director with a program known as TeamstersCare R.A.F.T. (Referral and Follow-Up Team), which provides referral and follow-up services to Local 25 members with substance abuse problems. Snow argues that Libby is not employed at the craft because TeamstersCare, the entity which provides health and welfare funds to Local 25 members, is an entity that is separate from Local 25 and has no collective bargaining agreement with the local. As authority for his position, he cites to Liss, E103 (March 8, 1996), in which then-Election Officer Quindel ruled that the member, who spent the majority of his time working as assistant fund manager of the local union's health and pension funds, was not employed at the craft within the jurisdiction of the local union because the funds were "organizations separate from the local union itself" and had no collective bargaining agreement with the local. She held this to be true in spite of the fact that the member also worked part-time as an employee of the local union and was allowed to pay dues and participate in union activities.

TeamstersCare, a Taft-Hartley fund, is similar to the health and pension funds entity described in Liss. It is overseen by a board which consists of three trustees from the local union and three employer trustees with oversight powers, which demonstrates that the funds are "separate from the local union itself." According to TeamstersCare Director Rod Smith, the fund has no collective bargaining agreement with the local, and he knows of only one other employee of TeamstersCare who is considered to be a member of the local. Applying the reasoning of Liss, Libby was not working at the craft within the local's jurisdiction while a director for TeamstersCare R.A.F.T.

However, Article II, Sec. 4(a)(4) of the IBT Constitution provides that the requirement of working in the jurisdiction "shall not be applicable" to any member during a leave of absence granted to such member with the approval of the local's executive board. In this case, Libby has provided us with evidence that he was granted such a leave of absence.

Specifically, our investigation reveals that until 1997, Libby worked as a truck driver with New Penn Motor Express, Inc. (hereinafter "New Penn") an employer which has a collective bargaining agreement with Local 25. On April 7, 1997, his local's executive board and his employer granted him a leave of absence, in accordance with Article 42, Sec. 1 of the collective bargaining agreement, to work as a director for TeamstersCare R.A.F.T. "on official union business." This was confirmed by letter dated April 15, 1997, addressed from Local 25 President George Cashman to New Penn. From April 1997 to the present, Libby has been listed in New Penn's human resource records as a "union representative" on a "leave of absence." Local 25 states that it considers him a representative, similar to a business agent, engaging in the important business of helping Local 25 members to combat their substance abuse addictions and related problems through counseling, treatment, and referral services. Therefore, in Libby's case the requirement of working at the craft in the local's jurisdiction is not applicable.

Snow further argues that Libby is ineligible because he holds a "supervisory position" with TeamstersCare R.A.F.T. and therefore may not hold office pursuant to Article II, Sec. 2(f) of the IBT Constitution.

It is unclear whether Article II, Sec. 2(f) of the IBT Constitution would apply to the position Libby holds while under a leave of absence, as opposed to his unquestionably non-supervisory position of truck driver at New Penn. Even if it did apply, evidence shows that Libby's position as a R.A.F.T. director is non-supervisory. In Lawrence, 2001 EAD 19 (September 8, 2000) we looked to the definition found in the National Labor Relations Act (29 U.S.C.A. § 152[11]) of a supervisor as "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."

Our investigation shows that Libby, although called a director, actually has the job description of a substance abuse treatment program facilitator/referral agent with no supervisory authority. He reports to TeamstersCare Mental Health Director John Heckler, TeamstersCare Executive Director Rod Smith, and TeamstersCare trustee and local president Cashman, but has no authority "in the interest of" TeamstersCare to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline any employee of TeamstersCare or, for that matter, any member of Local 25. Rather, Libby's authority includes only the ability to provide Local 25 members and their families with referrals to substance abuse treatment and resources, facilitate twelve-step type programs, and sit in on counseling meetings to evaluate their substance abuse problems.

Therefore, we DENY Snow's protest and find Libby ELIGIBLE to run as a delegate.

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 Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for that appeal, and shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon the parties listed above, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street, N.W., 10^th Floor, Washington, D.C. 20005, facsimile (202) 454-1501, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

David F. Reilly, Northeast Area Regional Director

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