IN RE: JOHNNY GABRIEL, Protestor.
Protest Decision 2006 ESD 49
Issued: January 20, 2006
OES Case No. P-05-033-111705-SO
Johnny Gabriel, a member of Local Union 728, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that he was issued a withdrawal card improperly to render him ineligible to run for delegate to the 2006 IBT convention.
Election Supervisor representative Dolores Hall investigated this protest.
Findings of Fact
On November 15, 2005, Local Union 728 secretary-treasurer Larry McDonald sent Johnny Gabriel the following letter:
As provided in Article XVIII of the International Constitution, a withdrawal card must be issued to members who are not employed in the craft for six consecutive months.
Enclosed is your withdrawal card and a check to refund your dues for November 2005.
(Original emphasis.)
Gabriel protested this letter, stating that the local union issued the withdrawal card and dues refund "in an effort to keep me from being eligible to run as a delegate in the 2006 Delegate election."
Investigation showed that Gabriel previously served as vice president of the local union. In addition to this elected position, Gabriel held the appointed position of business agent. In the 2004 local union officer election, Gabriel was reelected to the office of vice president, although all but one of the other members of his slate lost to the current incumbents. The unsuccessful candidate for local union president on Gabriel's slate, Jimmy Payne, protested the election. While the protest was pending, the current incumbents took office, and Gabriel continued in office as vice president, although he was discharged as business agent. The joint council granted Payne's election protest, overturned the results of the election, and ordered a re-run to take place in April 2005. In the re-run election, Gabriel and all members of his slate except one lost. Gabriel's last date of paid service to the local union was April 23, 2005.
In June 2005, Gabriel made application for and was accepted for placement on the local union's movie referral lists. Members wishing to be employed in the film and video industry are referred to employers via these lists. Two lists are maintained. Placement on the "A" list is limited to members who have previous experience in the film and video industry. The "B" list is comprised of members with no experience. Referrals are made from the "A" list first. If that list is exhausted, "B" list members are then referred.
Operation of the movie referral lists are governed by written local union policy. The policy that existed in June 2005 when Gabriel applied and was accepted required, in the general eligibility article, that applicants submit "an accurate resume for distribution by the Union to potential employers." The resume must list the applicant's name, contact information, job history, licensure and certifications, and industry experience. The general eligibility provisions also required that applicants be current in their union dues and pay an annual registration fee, agree to abide by the referral rules, complete and sign the applicable referral forms, and not own or have a beneficial interest in equipment that is used in film and video production.
If the applicant met these eligibility requirements, he was placed on the "A" list if he 1) possessed a current Georgia commercial driver's license, 2) was available for referral and was not otherwise employed on a full-time basis, 3) had specific experience in the film and video industry, and 4) possessed a current DOT medical certificate. Placement on the "B" list required a valid driver's license and a current DOT medical certificate.
Although Gabriel completed a referral form in June 2005, he did not sign it as required by the policy. Further, he did not submit a resume. Despite these deficiencies, the local union accepted Gabriel's application for placement on the referral list. He paid the required registration fee and was placed on the "B" list because he lacked the commercial driver's license and specific film and video experience necessary for "A" list placement. Thereafter, commencing in June 2005, he paid cash dues each month through November 2005, when the local union placed him on involuntary withdrawal.
In July 2005, one month after Gabriel was placed on the "B" list, the local union issued a revised movie referral policy that changed eligibility requirements significantly. Thus, where the previous policy required a commercial driver's license only for "A" list members, the revised policy required it for members of both the "A" and "B" lists. However, the policy's preamble included the following statement:
The following rules supersede and replace all previous referral rules. However, all persons currently appearing on either of the Union's existing A or B lists as of the effective date of these rules are eligible to continue on such lists.
The local union sent Gabriel the new referral policy by certified mail on July 25, 2005. The transmittal letter noted two changes in the policy related to registration and referral fees. On the subject of required licensure, the letter stated the following:
Registered individuals are responsible for making sure that their information is current and correct. The Local Union must have on file a copy of your current CDL and DOT card. This can be faxed to the 404-627-2045, mailed or hand delivered to the Local Union.
A copy of your CDL and DOT card must be received by the Local Union by close of business August 5, 2005. Failure to comply with this request can result in removal from the list.
(Original emphasis.)
Although Gabriel received this communication, he took no action on it for three reasons. Thus, the CDL requirement for "B" list placement applied only to those members placed on that list for the first time after the effective date of the policy; because Gabriel was already on the list when the new policy was announced, the preamble declared that he was eligible to continued placement even though he lacked the CDL. Second, Gabriel was aware that some jobs in the film and video industry did not require a CDL. Finally, pursuing the CDL would require Gabriel to rent the truck he would need for the licensing road test, an expense he believed unnecessary given that neither the policy nor the market for available jobs in the industry made a CDL mandatory. For these reasons, he did not pursue the CDL.
The local union claimed that it sent a follow-up letter to Gabriel on September 14, 2005 that stated as follows:
You were advised via a certified letter dated July 25, 2005 that a copy of your CDL and DOT card must be received by the Local Union. Because of your failure to comply with the "Local 728 Film and Video Industry Referral Rules," you will be removed from the "B" list effective September 30, 2005 unless the requested correct documents are received. Your removal from the "B" list will cause you to be ineligible to work in any Teamster productions in Georgia.
Pursuant to Article VI of the Referral Rules, "The Union reserves the right to restore persons who have been permanently removed from the lists, provided such persons account for all past due fees and pay an administrative fee of $100.00."
The local union stated that this letter was sent by first class mail. Gabriel told our investigator he did not receive it. Gabriel further stated that, had he received the letter, he would either have rented a truck in order to take the CDL test or obtained the local union's assurance that the CDL requirement did not apply to him as an existing "B" list member.
As Gabriel did not respond to the September 14 letter, the local union removed him from the "B" list effective September 30. However, the local union did not notify Gabriel that it had taken this action. During the period of time he was on the list, Gabriel was not referred to any film or video job, nor did he otherwise work under the local union's jurisdiction.
On November 15, the local union notified Gabriel that he was placed on withdrawal status and refunded his November dues.
The local union asserted that its action in placing Gabriel on withdrawal status was required by the Article XVIII of IBT Constitution, which provides:
When a member becomes unemployed in the jurisdiction of the Local Union, he shall be issued an honorable withdrawal care upon his request. If no request is made, an honorable withdrawal card must be issued six (6) months after the month in which the member first becomes unemployed, if he is still unemployed at that time.
Provided, however, that the above paragraph shall not apply to seasonal employment. In such cases, the Local Union may adopt such uniform Bylaw provisions relating to the issuance and deposit of withdrawal cards as it deems appropriate, which shall become effective when approved as required by this Constitution. The member shall continue to pay his monthly dues through the month in which the withdrawal card, if issued, is effective.
The local union asserted that Gabriel become unemployed when he lost the re-run election for vice president and that he has not worked under the jurisdiction of the local union since that time. As more than six months passed from Gabriel's last day of work under the local's jurisdiction, the local union submits that it was required to issue the withdrawal card.
On March 30, 2000, General President Hoffa issued an "advisory on the issuance of withdrawal cards in the motion picture industry," viz.
Article XVIII, Section 6(a) of the International Constitution generally provides that a withdrawal card should be issued to a member who is unemployed in the local's jurisdiction for six consecutive months. This provision also permits local unions to adopt bylaw provisions governing the issuance of withdrawal cards for members employed in seasonal industries.
While employment within the motion picture industry is not explicitly defined in the Constitution as "seasonal employment," the availability of such work in most local union jurisdictions is similarly infrequent and for relatively short periods of time. For this reason, employment in this industry should be regarded as "seasonal employment" for purposes of Article XVIII only. (This seasonal employment status shall not apply to the provisions of Article XXII of the Constitution regarding local union elections.)
Consistent with Article XVIII, Section 6(a) of the Constitution, local unions may adopt bylaw provisions to govern the issuance and deposit of withdrawal cards to this group of members. Such provisions should specify the length of time a member must be unemployed before a mandatory withdrawal card will be issued. A local union may not adopt a period of unemployment of less than six (6) months.
In determining the applicable period of unemployment, the local should consider the period of time in which the average member in the local could reasonably be expected to obtain employment within the industry. Once approved by the local's membership, the bylaw provision should be submitted to this office for approval in accordance with Article VI, Section 4 of the Constitution.
Local 728 did not adopt a bylaw provision addressing this advisory or seasonal employment of members in the motion picture industry.
The local union asserted that, in issuing the withdrawal card to Gabriel, it acted in accordance with its uniform practice. It cited five members who were issued withdrawal cards under circumstances it contended were similar to Gabriel. Thus, Janet Perrotti, an "A" list member, was issued a withdrawal card; however, Perotti told our investigator that she moved from the Atlanta area in September 2004 and took a voluntary withdrawal. Michael Meadows told our investigator that he did not receive a letter from the local union placing him on withdrawal or stating that he had been removed from the "B" list; he stated further that he was aware that he was behind in his dues to the local and intended to pay them soon. Ronnie Winslette ceased paying dues and presently works for a non-union trucking firm. Brian Todd and Jefferson Riley also were issued withdrawal cards; our investigator was unable to contact these individuals.
Gabriel appealed the issuance of the withdrawal card to the local union executive board. A hearing on the appeal was conducted on Friday, January 13. No decision has been announced.
In addition to his political activity as local union officer, Gabriel previously served as delegate to the 1996 and 2001 IBT conventions. In September 2005, he began organizing a slate to run in the delegate and alternate delegate election.
Analysis
Article VI, Section 1(a) 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.
The issue this protest presents is whether Gabriel was properly placed on withdrawal status in November 2005. Because we find that the local union was neither required nor permitted by the Constitution to issue the withdrawal card, we GRANT the protest.
Article XVIII, Section 6 requires local unions to place members on withdrawal status because of unemployment where that unemployment meets or exceeds six consecutive months. Election Officer Quindel observed that "[u]nder this provision of the IBT Constitution, the local union has an obligation to issue a withdrawal card to a laid off or discharged member after six months if the member remains unemployed at that time and has been unemployed for the entire period, regardless of the wishes of the member." Mangan, E111 (March 11, 1996).
However, the Constitutional requirement that a local union issue a withdrawal card to a member unemployed for six consecutive months does not, by Constitutional provision, apply to "seasonal employment." Article XVIII, Section 6(a), proviso. General President Hoffa, under the authority granted him by Article VI, Section 2(a) of the Constitution "to interpret the Constitution and laws of the International Union," declared that employment in the motion picture industry should be regarded as "seasonal employment" for purposes of Article XVIII. The General President's advisory directed local unions employing members in the motion picture industry to adopt bylaws, if they chose, "specify[ing] the length of time a member must be unemployed before a mandatory withdrawal card will be issued." However, the advisory declared that any such bylaw provision "may not adopt a period of unemployment of less than six (6) months."
Local 728 did not adopt any bylaw on the subject. Accordingly, because of the designation of motion picture employment as "seasonal," the "seasonal employment" exception in Article XVIII, Section 6(a) acts to nullify the requirement that withdrawal cards issue to members in that industry who suffer six months of unemployment. Under these circumstances, the local union was neither permitted nor required to place Gabriel on withdrawal status after six months of unemployment.
The local union points out that the "seasonal employment" status the advisory grants "shall not apply to the provisions of Article XXII of the Constitution regarding local union elections." From this statement, the local union argues the following, viz.
Therefore, even if Johnny Gabriel could legitimately argue that he should have been permitted to remain on the referral list, (which he can not), merely being on the list does not qualify him to run for local union office and/or a delegate to the International Convention which is governed by the same rules as elections for Local Union Office.
The local union's argument misses the mark. Article XXII makes two express references to seasonal employment, at Section 4(c) and 7. Both refer to the timing of elections in local unions comprised principally of seasonal members; neither refers to or otherwise implicates the eligibility of seasonal members to run for office. Accordingly, General President Hoffa's decision to limit the "seasonal" designation for motion picture industry members to Article XVIII does not impair Gabriel's eligibility to run for delegate or alternate delegate, for that eligibility is determined by the local union's authority to issue a withdrawal card under Article XVIII. We have found that the local union has no such authority under Article XVIII in this case.
Having determined that the local union had no authority to issue a withdrawal card, we also find that the local union was barred by its own policy from removing Gabriel from the "B" list effective September 30. The nominal reason the local cited for its action was Gabriel's failure to obtain a CDL and supply a copy of it to the local union. However, the July 25 policy the local union adopted - a policy that for the first time required members placed on the "B" list to possess CDLs - did not, by its terms, change the eligibility requirements of members already on the list. Accordingly, as Gabriel's placement on the "B" list was protected by the "grandfather" provision of the new policy, the local union had no basis on which to remove him from the list.
Finally, our Rules provide that "the active employment at the craft requirement may be excused by unemployment if, for the period of unemployment, the member was actively seeking and available for employment in the craft and not working outside the craft during such period of unemployment …" Article VI, Section 2(b). We find that applying for placement on a referral list, and being accepted onto that list is sufficient proof that a member was "actively seeking and available for employment in the craft." Having determined that the local union acted outside its authority to remove Gabriel from the "B" list, we hold that Gabriel satisfied the "employment at the craft" requirement.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
We order Local Union 728 to restore Johnny Gabriel to the "B" list of its film and video referral list and maintain him on that list for so long as he remains eligible under the terms of that policy and this decision. We further order Local Union 728 to rescind the withdrawal card it issued to Johnny Gabriel and to amend its records to indicate that withdrawal status was imposed improperly. We further order Local Union 728 to accept payment from Johnny Gabriel of the monthly dues for November and December 2005 and January 2006 and treat those dues as timely paid, provided that Gabriel tenders the dues no later than January 31, 2006.
By this decision, we find Johnny Gabriel ELIGIBLE for nomination to the position of delegate or alternate to the 2006 IBT convention and ELIGIBLE to nominate or second the nomination of any other candidate for delegate or alternate 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 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, N.W., Suite 1400, Washington, D.C. 20007-5135, 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
2006 ESD 49
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
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
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Johnny Gabriel
7441 Paul Court
Riverdale, GA 30274
Larry McDonald, Secretary-Treasurer
IBT Local Union 728
2540 Lakewood Ave., S.W.
Atlanta, GA 30315
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
Hall1000@bellsouth.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com