IN RE: ERIK JENSEN, Protestor.
Protest Decision 2006 ESD 283
Issued: May 30, 2006
OES Case No. P-06-234-032206-MW
Erik Jensen, a member and delegate candidate from Local Union 320, 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"). The protest alleged that business agents who served as election observers were on paid union time during the ballot count but two observers who were candidates used vacation time to attend.
Election Supervisor representatives Deborah Schaaf and Steven Newmark investigated this protest.
Findings of Fact
Protestor Jensen alleged that four business agents - Greg Burnes, Brenda Corrigan, Mike Golen (also president of Local Union 320), and Leland Johnson - were on paid union time as Mauren slate observers at the Local Union 320 vote count held on March 20, 2006. Jensen stated that he, a member for the opposition Working Teamsters slate, and Alston Dutchin, a member of the Mauren slate, used vacation time to observe the vote count. Jensen requests lost wages for himself and Dutchin and asks that Local Union 320 adopt a policy to pay lost time to candidates who get excused from work to attend a vote count.
Jensen also contests the presence of the Local Union 320 attorney at the count if he was being paid by the union at that time.
Local union secretary-treasurer Sue Mauren told our investigator that the business agents who attended the count are salaried employees who are required to perform a variety of duties throughout the week but do not work on a fixed schedule of hours. According to Mauren, the business agents did not take paid leave or vacation time for the count because they were not required to do so. They were required to perform their duties for the union before and after the time spent at the count, and on the other days during that week. Mauren stated that each business agent who attended the count satisfied the work obligation for the week, outside of the time spent at the count.
Local Union 320 supplied time sheets for business agents Burnes, Corrigan, Golen and Johnson for the two week period that included the March 20, 2006 ballot count date. Each sheet has columns for the day, date and name of the business agent, followed by columns headed "work," "vacation," "sick," and "explanation, if desired." Under each column heading are 14 rows, one row for each day of the two week period covered by the time sheet. On the sheets submitted, none of the time entries are split or subdivided. That is, for each day, a check mark appears in one of the three category columns ("work," "vacation," or "sick"), and a short entry of one to three words appears under "explanation" indicating something about the subject matter or location of the work done.
None of the four business agents identified by the protester was present as a candidate observer at the Local Union 320 election count (Golen was himself a candidate); none of the four business agents signed the election tally sheet. Our investigator did speak with each of the business agents about their work on March 20.
The word "office" is entered as the work explanation on Burnes' time sheet for five of the 10 working days on the time sheet. In both weeks of the time period, Burnes worked in the office on Monday and Wednesday; he also worked in his Local Union 320 office on Friday of the second week of the period. The ballot count occurred on Monday, March 20, when Burnes was otherwise working in his office at the local union. Burnes told our investigator that he was at work in his office in the morning before the count started, that he attended portions of the count during the day, and left at 2:00 p.m. to attend a meeting. Burnes stated that he was not at the count as the representative of any slate or candidate, and had not been asked by anyone to attend the count. He said he attended portions of the count because he had never been part of any election and he simply wanted to see what was involved in the process.
Corrigan's time sheet for March 20 states that she worked on "Chicago contract [illegible]." Other entries in the two weeks of her time sheet refer to items such as "office paperwork," "office membership meeting," and "Detroit Central Region." Corrigan told our investigator that she did not attend the count at all, stating that she spent all day working in her office.
Golen, president of Local Union 320, noted "Ballots 320" on his time sheet. Golen told our investigator that he attended part of the count, leaving not later than 11:30 a.m. Golen stated that he attends all election counts in his capacity as local union president and attends to supporting, non-partisan functions such as ordering lunch for the count workers. Our regional director, who attended the ballot count, corroborated Golen's account of his activities.
Johnson, like Burnes, attended portions of the count while also conducting work at his office in Local Union 320. Johnson's work explanation for March 20 reads "Mpls," reflecting that he was working in Minneapolis (where Local Union 320 is headquartered). Other entries on Johnson's time sheet refer to "Mpls," but also include an employer or work location. In any case, Johnson stated that he is not affiliated with any of the candidates or slates, did not attend the count as an observer for any slate, and did not remember filling out any observer form.
Mauren also reported that the union lawyer was not being paid by the union to observe the count.
Mauren stated that when members take time off work for Union business (such as participating in a negotiation meeting); they submit a "lost time wage" form to be reimbursed by the local union for their lost wages. Jensen, a steward, did not request such a form, although he admitted he was aware of them.
Jensen requested vacation time from his employer and stated that there is no provision in Local Union 320's collective bargaining agreement with the University of Minnesota that permits paid time off to attend a ballot count.
Analysis
Article IX, Section 1(f) of the Rules provides in relevant part: "Time spent observing shall be considered as time spent on Union business. Therefore, upon written request of any observer, the appropriate Union officer, business agent, steward, etc., shall so certify to such observer's employer to or any other person or entity to whom the observer reasonably requests such certification be given."
Article IX, Section 1(f) states that "[t]ime spent observing shall be considered as time spent on Union business." This provision "is addressed only to the means by which employees are to be excused from work to serve as observers, and not to their compensation by their local union for time spent performing that service." Kleckner, 2001 EAD 297 (April 9, 2001). Employees of the local union who serve as observers must take vacation or unpaid time off for such purpose. Id., see also, Gabriel, 2006 ESD 164 (March 6, 2006).
Our investigation found that none of the four local union business agents identified by the protester attended the tally of ballots as observers for any candidate or slate. There is also evidence that the business agents in question fulfilled their full time and effort obligations to the local union in the workweek in question outside of any time spent at the tally; one of the business agents, Golen, was properly present as president of Local Union 320.
Although Jensen reports that the collective bargaining agreement covering his employment does not permit union leave expressly for the purpose of attending a ballot count, Article IX, Section 1(f) of the Rules does. Accordingly, Jensen could have requested that his local union request union leave that would permit Jensen to attend the count. Such intervention by the local union would not, of itself, permit Jensen to be paid for the time he spent observing. Instead, it merely would have permitted him to be excused from work. Given that Jensen works an established schedule that conflicted with the tally of ballots, he did not have the option the local union business agents had to perform his duties for his employer at times other than his regular shift. For that reason, Jensen correctly took vacation leave in order to be paid for the time spent observing.
Local Union 320 did not pay its attorney to observe the count, and there is nothing improper in the attorney's attendance.
On the facts presented here, we find no violation of the Rules. Accordingly, we DENY this protest.
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
885 Third Avenue, Suite 1000
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. 20006-1416, 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 283
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
David J. Hoffa
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Erik Jensen
4345 11th Avenue South
Minneapolis, MN 55407
Jense028@umn.edu
Susan Mauren
Secretary-Treasurer, Local 320
3001 University Avenue SE #500
Minneapolis, MN 55414
Deborah Schaaf
8883 Douglas Circle
Helena, Montana 59602
dschaaf@bresnan.net
Joe Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
William C. "Bill" Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Steven R. Newmark
1725 K Street, NW Suite 1400
Washington, DC 20005
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com