IN RE: ELIGIBILITY OF FRANCISCO REYNOZO
Protest Decision 2005 ESD 18
Issued: October 25, 2005
OES Case No. E-05-002-092905-FW
(See also Election Appeals Master decision 05 EAM 5)
On October 13, 2005, we issued our decision in 2005 ESD 15, finding Francisco Reynozo and Fritz Conle had not maintained continuous good standing for 24 consecutive months and therefore were ineligible for the positions of delegate or alternate delegate. On October 14, Local Union 890 president Franklin Gallegos presented new evidence and requested that we reconsider our decision with respect to Reynozo. We stayed our decision concerning Reynozo only and directed interested parties to submit all relevant evidence regarding his eligibility. We also tolled the time period Reynozo had under the Rules for appealing our decision finding him ineligible and stated that his appeal period "will commence to run when we dissolve this stay." 2005 ESD 16 (October 14, 2005).
Reynozo apparently ignored the stay and appealed our decision in 2005 ESD 15 to the Election Appeals Master, who set hearing on the appeal for Wednesday, October 26. Reynozo did not submit any further material in response to the Election Supervisor's request, and failed to return several telephone calls placed to him by our investigator. We reinvestigated Reynozo's eligibility nonetheless and now issue this supplemental decision.
Election Supervisor representative Steven R. Newmark reinvestigated this matter.
Findings of Fact
On September 20, 2005, Local 890 held its nomination meeting for the delegate and alternate delegate elections, and Reynozo was nominated as delegate.
TITAN records show that Reynozo was on voluntary withdrawal status for the following periods: March 1-April 14, 2004; April 19, 2004 - February 13, 2005; March 15 - April 11, 2005; and May 18 - July 5, 2005. Reynozo paid the accumulated unpaid dues for the periods of withdrawal upon return to active status after each withdrawal.
Reynozo contends that he never requested withdrawal status, that he was at all times covered by one or more valid dues check-off authorizations, and that the TITAN record indicating withdrawal status was the result of clerical error.
Evidence indicates that Reynozo was employed by Local 890 as a business agent for Gilroy Foods, a seasonal employer, and was laid off from the local union in January 2004. While actively employed, Reynozo's dues were deducted from his wages pursuant to check-off. Following layoff from the local union, Reynozo returned to active employment for Gilroy Foods, where he had seniority and recall rights, and worked until he retired on February 27, 2004. His employment at Gilroy Foods also was subject to a check-off authorization.
Following his layoff by the local union and his retirement from Gilroy Foods, Reynozo continued in his elected position as a member of the local union's executive board, earning a monthly stipend of $200, an amount sufficient to fund his monthly dues obligation to the local. The local union did not deduct the dues, however, despite the existence of a check-off authorization that had permitted it previously to deduct dues from Reynozo's business agent compensation.
No dues were forwarded to the local union by Gilroy Foods for February 2004, and the local itself did not deduct dues from Reynozo's executive board compensation in February or March 2004. On April 14, 2004, Reynozo paid cash dues to the local for February and March. He also claims that he instructed a member of the local's clerical staff to deduct his dues from his monthly stipend thereafter. This instruction is neither confirmed nor disputed by the local's clerical employees.
Although the local continued to pay the $200 monthly stipend to Reynozo, it did not check off dues from that stipend. Instead, it placed Reynozo on automatic withdrawal but did not issue a withdrawal card to him or otherwise place him on notice of his withdrawal status.
On December 8, 2004, Michael Johnston, the local's recording secretary, wrote IBT legal director Gary Witlen to advise that Reynozo was on withdrawal status, had not paid dues for several months, and was therefore believed to be ineligible to continue as a member of the local's executive board. The recording secretary requested confirmation of this determination. General President Hoffa replied on December 15, 2004, stating that "in order to retain a position on Local Union Executive Board, an officer must maintain active membership in the Union. Acceptance of a withdrawal card interrupts active membership. Accordingly, Brother Reynozo cannot remain a member of the Local Union's Executive Board and his office must be declared vacant."
On December 29, 2004, the local notified Reynozo of the General President's determination and removed him from the executive board. Reynozo wrote to the General President directly on January 25, 2005, appealing the determination that removed him from the executive board and explaining that his dues should have been checked off from his monthly executive board compensation. The General President requested that the recording secretary respond to Reynozo's claims in a letter dated February 3, 2005. The recording secretary did so on February 8. On the basis of those submissions, on October 12, 2005, the General President reversed his previous determination, finding that Reynozo had valid check-off authorizations in place with Gilroy Foods and the local union and sufficient earnings in each month to fund his monthly dues obligation through the date the local removed him from the executive board because of non-payment of dues. The General President directed the local union to amend Reynozo's TITAN record to remove the withdrawal status and further directed the local union to restore Reynozo to the executive board upon payment of any outstanding dues obligation.
Analysis
Article VI, Section 1 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 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 suspension, expulsions, withdrawals, transfers or failure to pay fines or assessments."
A member on dues check-off retains his good standing even if his dues were remitted late or not at all, provided he gave a check-off authorization and had sufficient earnings in the month from which dues could have been deducted. IBT Constitution, Article X, Section 5(c); Dunn, E9 (October 31, 1995).
Further, a member on check-off who is discharged and then reinstated with back pay retains his continuous good standing if the back pay attributable to each month of the discharge is sufficient to fund that month's dues obligation. Thompson, E20 (January 18, 1996), aff'd, 96 EAM 63 (January 29, 1996).
Here, we find that Reynozo had a valid check-off authorization in place that directed the local union to deduct his monthly dues obligation from compensation it paid him, including his monthly stipend for service on the local's executive board. We further find that the untimely remittance of dues on Reynozo's behalf was the result of the local's failure to honor his check-off authorization. Finally, we find that Reynozo's removal from the executive board, and consequent loss of monthly compensation sufficient to fund his dues obligation, was the result of the local's failure to deduct his dues from its monthly payments to him; the General President's decision reinstating Reynozo to the executive board restored his continuous good standing.
Based on these facts, we VACATE our previous decision finding Reynozo ineligible and now determine that he is ELIGIBLE to serve as a delegate to the 2006 IBT Convention. Except for this finding, our determination with respect to all other nominees discussed in 2005 ESD 15 remains in full force and effect.
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:
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, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, Washington, DC 20006 all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005 ESD 18
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Frank Halstead, Shop Steward
Teamsters Union Local #572
260 La Follette Drive
Los Angeles, CA 90042-3512
fwhalstead@hotmail.com
Franklin L. Gallegos
President, Local 890
207 N. Sanborn Road
Salinas, CA 93905
apinta77@aol.com
Crescecio Diaz
450 Hall Road
Watsonville, CA 95076
crescenciodiaz@aol.com
Tony Gonzalez
207 North Sanborn Road
Salinas, CA 93905
tul890@aol.com
Salvador Carrillo
1925 Bradbury Street
Salinas, CA 93906
sscarrillo@sbcgolbal.net
Steve Garcia
880 Susan Court
Gilroy, CA 95020
(via First Class Mail)
Arnold Bernal
146 Ledesma Street
Soledad, CA 93960
abernal97@aol.com
Francisco Reynozo
970 Spring Grove Road
Hollister, CA 95024
(via Overnight UPS)
Michael Johnston
81 Devon Lane
Watsonville, CA 95076
mike890@pacbell.net
Robert Sanchez
18556 Northridge Drive
Salinas, CA 93906
(via First Class Mail)
Fritz Conle
1248 West Oak Avenue
Greenfield, CA 93927
fritzconle@peoplepc.com
Steven Newmark
Office of the Election Supervisor for the
International Brotherhood of Teamsters
1725 K Street, NW, Suite 1400
Washington, DC 20005
snewmark@ibtvote.org