Protest Decisions

IN RE: ELIGIBILITY OF JOHN McPARTLIN, Local Union 299.
Protest Decision 2011 ESD 79
Issued: January 24, 2011
OES Case No. E-016-011111-MW

Kenneth Kwapisz, member and secretary-treasurer of Local Union 299, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that delegate candidate John McPartlin is ineligible for that position.

Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

Prior to the nominations meeting held January 15, 2011, McPartlin requested that we verify his eligibility to be nominated for delegate or alternate delegate and to nominate or second the nominations of others.

Under Article VI, Section 1(a) of the Rules for the 2011 IBT Election, "[t]o 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 the month of nomination; and (3) Be eligible to hold office if elected."

Because the nominations meeting for the local union's delegates and alternate delegates election was held in January 2011, the 24 month period during which candidates must be in continuous good standing in order to be eligible for nomination ran from January 2009 through December 2010.  To verify McPartlin's eligibility during this period, we reviewed TITAN records for dues remittances received from him or remitted on his behalf by the local union or his employer, MAHS.

Based on that review, we determined that he maintained his membership in good standing continuously for the 24 months of the eligibility period and therefore issued a verification of eligibility to be nominated for delegate or alternate delegate. As part of that analysis, we also found that McPartlin's dues were fully paid through December 2010, and he was therefore eligible to nominate or second the nomination of other candidates. McPartlin proceeded to be nominated for delegate.

Kwapisz protested, claiming that McPartlin was ineligible because Local Union 299 had properly issued him a withdrawal card. Our analysis of McPartlin's dues record and Kwapisz's arguments follows.

For the months January through May 2009, McPartlin's dues were paid by the local union because he was the steward for the MAHS bargaining unit where he worked. Although dues were posted late to his dues record for January, March, April and May, the local union was responsible for making the dues remittance and its late remittance will not cause an interruption in the member's continuous good standing.

Effective May 2, 2009, McPartlin was laid off from employment with MAHS. Beginning in June, he paid cash dues timely through December 2009 and therefore maintained his continuous good standing through that time.

In January 2010, the local union issued McPartlin what it termed a mandatory withdrawal card pursuant to Article XVIII, Section 6(a) of the IBT Constitution, which requires that a 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."[1] A withdrawal card properly issued during the eligibility period (unless deposited by the member the month after issuance) interrupts continuous good standing and renders him/her ineligible to be nominated. McPartlin contended that the withdrawal card was issued in violation of the IBT Constitution because he was recalled to work for 1 day on October 21, 2009. He asserted that the 1-day recall interrupted and restarted the 6-month period for issuance of a mandatory withdrawal card, thereby rendering the January 2010 issuance of the withdrawal card improper. He also asserted that he was recalled for a second 1-day recall on February 8, 2010, which again restarted the 6-month period.

In support of his assertions, McPartlin presented sworn affidavits that members employed at MAHS are responsible for dues in a given month if they work at any time in that month, and that the local union has collected full monthly dues from members who worked as few as 4 hours in a given month. In August 2009, the employer gained the right through a contract modification with the union to recall employees from layoff status "if work fluctuates or there is absenteeism."[2] The employer advised us during the investigation that it recalled McPartlin to work on October 21, 2009 and again on February 8, 2010 for that purpose. Based on the local union's practice of collecting full monthly dues from employees who work as few as 4 hours in a given month, we find that the October 21 and February 8 1-day recalls for casual work interrupted McPartlin's unemployment and restarted the 6-month period referenced in Article XVIII, Section 6(a) of the IBT Constitution. Accordingly, the mandatory withdrawal card was not properly issued to McPartlin in January 2010.

Protestor Kwapisz presented two arguments in response. First, he asserted that McPartlin's period of unemployment was more properly termed a voluntary leave of absence. In support, Kwapisz presented evidence that, although MAHS implemented layoffs in May 2009, McPartlin was "laid off" only because he volunteered for it out of line with seniority. But for McPartlin's voluntary acceptance of layoff, he would have remained employed at all times during the eligibility period. Kwapisz presented additional evidence that the reason McPartlin accepted the voluntary layoff was so that he could take college courses in pursuit of a degree.

McPartlin does not dispute that he took voluntary layoff or attended college while on layoff, but he argues nonetheless that he was in fact laid off and not on leave of absence. The employer confirmed that it regarded McPartlin as on layoff commencing in May 2009.[3] McPartlin applied for and received unemployment compensation from the State of Michigan, receipt the employer did not contest. And the employer maintained McPartlin on its layoff list, recalling him on for two days of work, something it would not have done if McPartlin was on leave of absence. Accordingly, we find that McPartlin was on layoff, not leave of absence.

Kwapisz second argument is that, because the IBT constitution requires that a member be employed at the craft at all times during the 24 month eligibility period, any period of unemployment will render the member ineligible for nomination as delegate. We disagree. Under Article VI, Section 2(b) of the Rules, 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 …" We have held that a member satisfies the "employed at the craft" requirement during a period of unemployment by "applying for placement on a referral list, and being accepted onto that list." Eligibility of Gabriel, 2006 ESD 49 (January 20, 2006). We find that McPartlin's entry on the employer's layoff list, from which he could be recalled to active employment (and from which he actually was recalled for two days), is analogous to placement on a referral list and satisfies the requirement that he actively seek employment during his period of unemployment.

When the unauthorized withdrawal card was issued to McPartlin, the local union ceased accepting his dues payments. McPartlin submitted satisfactory proof that he tendered timely dues payments for the months January through June 2010 and that on each such occasion the local union failed or refused to process the dues payment and credit it to his record. A local union's failure or refusal to cash a member's dues payment check will not serve, standing alone, to cause an interruption in the member's continuous good standing. Eligibility of Asskaryar, 2006 ESD 53 (January 25, 2006). Accordingly, his timely tender of dues in the months January through June 2010 maintained his membership in good standing for those months.

Investigation showed that McPartlin returned to work at MAHS in July and August 2010, that he timely remitted dues for those months to the local union, and the local union processed his dues payment and credited his dues record. Investigation also showed that his dues for September through November were deducted and remitted by his employer pursuant to check-off authorization. Finally, McPartlin timely paid his December 2010 dues by check to the local union.

Based on this dues payment record, our determination that the withdrawal card was impermissibly issued, and his timely tender of dues for months when the local union failed or refused to accept them, we find that McPartlin has maintained continuous good standing for the 24 month eligibility period at issue here.

Finally, a Local Union 299 member is eligible to nominate or second a nomination if his/her dues are fully paid through December 2010. As McPartlin's December 2010 dues were fully paid before the nominations meeting, we determine that he was eligible to nominate or second a nomination at the nominations meeting.

For these reasons, we DENY the protest and find McPartlin ELIGIBLE for nomination as delegate and to nominate and second the nomination of other members.

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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 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
        2011 ESD 79

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org

David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
Previant Goldberg
1555 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

Kenneth Kwapisz, Secretary-Treasurer
Teamsters Local Union 299
2741 Trumbull Avenue
Detroit, MI 48216
ibtlocal299@sbcglobal.net

John McPartlin
24200 Wilson Drive
Brownstown Twp., MI 48143
Jmcpartlin14@comcast.net

L.Rodger Webb
17000 W. 10 Mile Road, 2d fl
Southfield, MI 48075
rodger@weflaw.com

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com