IN RE: BRAD THOMPSON, Protestor.
Protest Decision 2006 ESD 329
Issued: July 19, 2006
OES Case No. P-06-308-071306-HQ
(See also Election Appeals Master decision 06 EAM 59)
Brad Thompson, member and delegate from BLET GCA 490, 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 GCA 490 failed to reimburse him and delegate Ed Michael for convention expenses, including per diem, hotel and travel expenses, and lost wages, in violation of the Rules.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
Thompson and Michael attended the IBT convention as delegates from BLET GCA 490. Thompson also attended the BLET Convention, held the week preceding the IBT convention. The protest alleged these delegates were not reimbursed for hotel and airfare expenses, lost wages, and per diem for the week of the IBT convention.
Investigation found that Thompson knew before traveling to Las Vegas that Local 442, his local division, lacked the financial wherewithal to pay him the wages he lost while attending the BLET convention. For that reason, Thompson sought to receive vacation pay from his employer, Union Pacific, for the week of the BLET convention and to receive lost wages from GCA 490 for the week spent at the IBT convention. However, when Thompson approached his employer with the vacation request, he was told that no "vacation slots" were available for the week of the BLET convention. As a result, Thompson planned to take vacation time during the week of the IBT convention and to collect lost wages from GCA 490 for that same week in order to have 2 weeks' pay for the 2 weeks spent in Las Vegas. Thompson did not clear this plan with our office or GCA 490 and therefore received no assurance from any source that GCA 490 would be required to pay him for wages he would have earned during the week of the IBT convention.
Citing Thompson's receipt of vacation pay for the week of the IBT convention, GCA 490 declined to pay Thompson lost wages for that week.
With respect to travel expenses, Thompson's protest stated he did not receive hotel or airfare reimbursement or per diem compensation for the week spent at the IBT convention. In response to this aspect of the protest, GCA 490 agreed to pay Thompson the per diem and hotel and travel costs as reflected in the expense report he submitted
Bill Speaker, an officer of BLET Local 442, confirmed that Thompson knew before attending either convention that Local 442 had insufficient funds to pay a week of lost time for him. Speaker stated that Thompson will be reimbursed for lost wages for the week of the BLET convention if, and when, Local 442 has sufficient funds.
Protestor Michael attended only the IBT convention. He did not take vacation time for that week. The protest claimed he was not reimbursed airfare, hotel and lost time, nor did he receive his per diem check. After the protest was filed, GCA 490 made payment for Michael's per diem, hotel and travel costs, and lost wages.
Analysis
Pursuant to Article III of the Election Supervisor's March 24, 2006 Advisory Regarding Payment of Expenses for Convention Delegates and Alternate Delegates, "Local Unions are obligated to cover four categories of Convention expenses: (A) travel expenses to and from Las Vegas and local transportation costs while in Las Vegas during the week of the convention; (B) per diem; (C) hotel costs; and (D) wages or salary." Further, "[n]o delegate or alternate will be required to use his or her vacation time to attend the Convention." However, "a member, whether a delegate, alternate or guest is prohibited from receiving duplicate payments for travel, per diem, hotel or other Convention expenses, even if authorized by the Local Union or other provider." Thus, a local union or GCA is prohibited from paying a delegate for "lost wages" if the member was paid for that time from another source. A member cannot be required to take vacation time to attend the convention, but may choose to do so. A member who chooses to take paid vacation time to attend the convention, however, has no "lost wages" and there is no loss of member income for the local union to replace.
With respect to Thompson's lost wages resulting from the BLET Convention, we note that BLET Local 442 has indicated that they may reimburse Thompson. However, the Election Supervisor has no authority under the Rules to order reimbursement for Thompson for expenses related to the BLET Convention; our authority in this regard is limited to expenses incurred in attending the IBT convention. In addition, we find that the Rules and our Advisory do not require GCA 490 to pay Thompson for lost wages for the week of the IBT convention because Thompson chose to take vacation time to attend the convention and therefore has no lost wages to be repaid. A member cannot be paid double income from two different sources for attending the convention. Therefore, we DENY this portion of the protest.
In reaching this conclusion, we recognize that Thompson's intent in devising his plan was to replace the wages Local 42 was unable to pay him with vacation pay from his employer. The circumstances that caused him to take vacation time during the week of the IBT convention had the legal effect of excusing GCA 490 from its obligation to pay lost wages during that week. In short, Thompson rendered service to the union with his attendance at both conventions, but did so either without compensation for the BLET convention or on his own vacation time for the IBT convention. Although the Rules and our Advisory do not permit us to order it, we nonetheless encourage Local 42 and GCA 490 to rectify this unfortunate situation. If the parties are able to resolve this issue by their own agreement, we emphasize that Thompson would be entitled to receive either the vacation pay he already accepted for the week of attendance at the IBT convention or lost wage reimbursement for that week (or equivalent time), but not both.
We find that GCA 490 has appropriately agreed to reimburse Thompson and Michael for travel expenses, hotel costs, and per diem for the week of the IBT convention. GCA 490 also will pay Michael for his lost wages for that week. Accordingly, we deem this portion of the protest RESOLVED.
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 329
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
Brad Thompson
406 Roth Drive
Scott City, MO 63780
Ed Michael
c/o Brad Thompson
406 Roth Drive
Scott City, MO 63780
C. R. Rightnowar
Chair, BLET GCA 490
320 Brookes Drive, Suite 115
Hazelwood, MO 63042
Wes Taylor
BLET GCA 490
320 Brookes Drive, Suite 115
Hazelwood, MO 63042
Steven Newmark
Office of the Election Supervisor for the
International Brotherhood of Teamsters
1725 K Street, N.W., Suite 1400
Washington, DC 20006
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com