IN RE: ELIGIBILITY OF PAUL PESSAGNO, Local Union 384.
Protest Decision 2011 ESD 118
Issued: February 17, 2011
OES Case No: E-035-012811-ME
Michael Bonaduce, president of Local Union 384, filed a timely eligibility 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 Paul Pessagno was ineligible for nomination as a delegate to the 2011 IBT convention. The protest claimed that Pessagno has not been actively employed at the craft within the jurisdiction of the local union since July 8, 2010, when he was discharged.
Election Supervisor representative Kathryn A. Naylor investigated this protest.
Findings of Fact and Analysis
Article VI, Section 1(a) of the Rules provides that "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."
Local Union 384 held its nominations meeting on January 23, 2011. Accordingly, the 24-month period during which candidates must be in continuous good standing in order to be eligible for nomination as delegates ran from January 2009 through December 2010.
TITAN records for Pessagno indicate that his dues are paid by check-off authorization with his employer, Haines & Kibblehouse, Inc. The records reflect timely check-off remittances from January 2009 through August 2010. For the remainder of the 24-month period, Pessagno's dues were timely paid by cash for September through December 2010.
Protestor Bonaduce provided documentation that demonstrated that Pessagno was discharged by his employer on July 8, 2010. Pessagno filed a grievance challenging his termination, which was denied by Haines & Kibblehouse. The grievance was submitted to arbitration before the Five County Construction Joint Committee, which held a hearing and issued a decision on October 26, 2010, denying the grievance and upholding the discharge
Pessagno acknowledged that he was discharged by Haines and Kibblehouse and that he grieved his termination with that employer. However, Pessagno maintained that he was employed in the pipeline construction industry with Henkels & McCoy, Inc. from August through early November 2010, when he was laid off because of lack work at the end of the construction seaon. Pessagno provided copies of his pay stubs from Henkels & McCoy that showed earnings for the last week in August 2010 through October 31, 2010, and that he was laid off effective November 3, 2010. Pessagno stated that since being laid off, he has been actively seeking employment during November and December 2010. However, he told our investigator that he has recall rights with Henkels & McCoy and expects to be recalled when the weather improves.
Our investigator spoke with a Henkels & McCoy representative who confirmed that Pessagno started work with the company in late August and was laid off effective November 3, 2010. She explained that he was working under the pipeline agreement and that a number of Teamster local unions are parties to this agreement. Under the agreement, the jurisdiction of any Teamster local union is determined by the member's worksite in the respective counties of Pennsylvania. Pessagno worked in Reading, Pennsylvania, which is under the jurisdiction of Local Union 429, not Local Union 384. Bonaduce confirmed that Local Union 429 has jurisdiction over construction work in Reading.
In addition to the obligation to pay dues, a member must also work in a craft under the jurisdiction of the local union for the eligibility period. This requirement can be excused if "the member was actively seeking and available for employment in the craft and not working outside the craft during such period of unemployment, or by active pursuit of an unresolved grievance or other legal action challenging suspension or discharge." Rules, Article VI, Section 2(b). Duncan, 2006 ESD 55 (January 26, 2006), aff'd, 06 EAM 9 (February 14, 2006). Pessagno and Local Union 384 were actively pursuing his grievance since his termination in July 2010 until late October 2010, when the arbitration award denying the grievance was issued. Pessagno timely paid his dues on a cash basis throughout this period. As a result, we find there was no interruption in his continuous good standing during these months.
In these circumstances, the fact that Pessagno was working with Henkels and McCoy on a job outside the jurisdiction of Local Union 384 during August through October 2010 will not interrupt his continuous good standing during these months. If a member working outside of the jurisdiction is actively pursuing a grievance or other legal action challenging a discharge, he/she maintains continuous good standing. McIntyre, E113 (March 12, 1996); Duncan, 2006 ESD 55 (January 26, 2006), aff'd, 06 EAM 9 (February 14, 2006).
Pessagno states he is actively seeking work. On this issue, the member's word is often accepted. See, e.g., Eligibility of McCauley, 2006 ESD 151 (March 27, 2006). As noted above, Pessagno had timely paid his dues in cash and the local union has accepted such dues for the remainder of the 24-month period through December 2010.
Accordingly, we find Pessagno ELIGIBLE for nomination as a delegate to the IBT convention.
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:
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 118
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 Keegel 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
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.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
Paul Pessagno
340 Fairview Chapel Road
PO Box 311
Birdsboro, PA 19508
pessagno@dejazzd.com
Michael Bonaduce
President
2910 Hannah Avenue
Norristown, PA 19401
mbonaduce@teamsterslocal384.org
Denise Ventura
949 Old Hickory Road
Pittsburgh, PA 15243
dmventura@verizon.net
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey J. Ellison
214 S. Main Street, Suite. 210
Ann Arbor, MI 48104
ellisonesq@aol.com