Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ELIGIBILITY OF                          )           Protest Decision 2016 ESD 80

            HOUSTON MITCHELL,                )           Issued: January 25, 2016

            RICHARD ARRIETA,                    )           OES Case No. E-085-010916-SO

            GUSTAVO GARCIA, and              )

            ADRIAN GONZALEZ,                   )

                                                                        )

            Local Union 745.                               )                      

____________________________________)

            Debra Haddock, member and employee of Local Union 745, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest made several allegations, first that Houston Mitchell is ineligible for nomination as delegate to the IBT convention for alleged failure to maintain 24 consecutive months of good standing; second, that Richard Arrieta was invalidly nominated because his nominator withdrew the nomination; third, that Adrian Gonzalez is ineligible for nomination as alternate delegate for alleged failure to maintain 24 consecutive months of good standing; and finally that Gustavo Garcia was invalidly nominated because his nominator was ineligible to nominate.

            Election Supervisor representative Dolores Hall investigated this protest.

Findings of Fact and Analysis

Article II, Section 5(h) of the Rules provides that a member is eligible to nominate another member for delegate or alternate, or to second that nomination, if the nominating or seconding member has “his/her dues paid through the month prior to the nominations meeting.” 

In contrast to the good standing requirement applicable to nominators and seconders, the Rules require continuous good standing for candidates.  Thus, 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.”

The nominations meeting for Local Union 745’s delegates and alternate delegates election was held January 9, 2016.  Therefore, the 24-month period during which candidates must be in continuous good standing in order to be eligible for nomination ran from January 2014 through December 2015. 

Houston Mitchell – Eligible

The protest alleged that Mitchell is ineligible for delegate because of an alleged failure to maintain 24 consecutive months of good standing.

To verify Mitchell’s eligibility during this period, we reviewed the TITAN record for dues remitted on his behalf.  Mitchell’s TITAN shows that he was a check-off dues payer employed by Jack Cooper Transport.  During the eligibility period we examined, the TITAN record shows that Mitchell’s dues generally were remitted one month ahead of the month they were due.  Thus, dues posted to Mitchell’s payment record in December 2013 paid him through January 2014, dues posted in January 2014 paid him through February, and beginning in May 2014, dues remitted to the local union paid him through the following month for the balance of the eligibility period, such that dues posted in December 2015 paid him through January 2016.  The only break in this pattern occurred early in 2014.  Thus, no dues were posted to his record in March 2014.  The next month, April, twice the monthly amount of dues were remitted, bringing him current again.  In May 2014, twice the monthly amount of dues were remitted once more, bringing Mitchell to the status of being one month ahead once more.  Mitchell produced to our investigator check stubs showing that he was employed by Jack Cooper in March 2014 and earned sufficient wages to fund his dues for that month.

A member on dues check-off retains his good standing even if his dues were remitted late or not at all by the employer, provided he had signed a check-off authorization and had sufficient earnings or paid leave in the month from which dues could have been deducted.  IBT Constitution, Article X, Section 5(c); Eligibility of John Gerow, et al., 2006 ESD 121 (March 2, 2006); Eligibility of Thiel, 2010 ESD 16 (July 26, 2010), appeal withdrawn, 10 EAM 4 (August 6, 2010); Eligibility of Montes, 2011 ESD 114 (February 16, 2011).  This rule operates to protect Mitchell’s continuous good standing.

Accordingly, we find that Mitchell maintained continuous good standing for the entire 24-month eligibility period and is ELIGIBLE to run for delegate.

Richard Arrieta – Validly Nominated

            Richard Arrieta was nominated by Marc Flores in writing.  Flores told our investigator that Arrieta, a co-worker at YRC, asked him to make the nomination and Flores agreed.  After the written nomination was signed and submitted, Flores told our investigator he decided that he did not wish to be involved in union politics, so he went to the local union hall on Saturday, January 9, to ask how he could withdraw the nomination.  A typewritten statement was prepared by protestor Haddock that read as follows:

My name is Mark [sic] Flores, [SSN4 redacted], and a letter of nomination was submitted on my behalf on Friday, January 8, 2016 via facsimile to Local 745.  I am personally present at the Nominations Meeting today to WITHDRAW that nomination and I will NOT be participating in the nominations process.

I am here today on my own free will and volution [sic].

The statement was also notarized by protestor Haddock.    

            As the signed statement indicates, Flores was present at the nominations meeting on Saturday, January 9 and, in addition to the signed statement, orally told the chair of the nominations meeting that he was withdrawing the nomination.  Arrieta had no other nominator, and protestor Haddock urges that his nomination fails because Flores’s written nomination of him was effectively revoked.

            Because he was working, Arrieta was unable to attend the nominations meeting and had accepted the nomination in writing.  On Monday, January 11, he said a job steward at YRC told him he had been “un-nominated.”  Although Flores claims he told Arrieta prior to the nominations meeting that he had changed his mind and would attempt to withdraw the written nomination, Arrieta denies categorically speaking with Flores about the withdrawal or learning prior to Monday, January 11, that the nomination had been withdrawn.  We credit Arrieta.

            We reject the protest’s submission and find Arrieta validly nominated.  We conclude that the nomination was made when the written nomination was signed and faxed to the local union hall, and Arrieta was entitled to rely on that submission.  A written “withdrawal” of nomination, coming at the nominations meeting and after the deadline by which written nominations could be submitted, effectively left Arrieta without recourse to replace the written nomination Flores had provided.

            The Rules, at Article II, Section 5(f), spell out the procedure by which a written nomination or second may be submitted.  Provided the writing meets the requirements of content and timely submission laid out there, the Rules mandate that “[a]t the nomination meeting, the presiding Local Union officer shall announce and treat the written nomination or second as if it had been made from the floor of such meeting.”  Under this provision, Local Union 745 had no option but to announce the written nomination of Arrieta by Flores and treat it as though made from the meeting floor, irrespective of Flores’s purported change of mind. 

            Accordingly, we DENY this aspect of the protest and find Arrieta validly nominated.

Adrian Gonzalez - ELIGIBLE

The protest’s allegation is that Gonzalez is ineligible for nomination as alternate delegate because he failed to maintain 24 consecutive months of good standing with respect to dues payment.

To verify Gonzalez’s eligibility during this period, we reviewed the TITAN record for dues remitted on his behalf.  Gonzalez’s TITAN shows that he was a check-off dues payer employed by UPS.  During the eligibility period we examined, the TITAN record shows that Gonzalez’s dues generally were remitted one month ahead of the month they were due.  Thus, dues posted to Gonzalez’s payment record in December 2013 paid him through January 2014, dues posted in January 2014 paid him through February, and so on up through July 2015, which paid him through August 2015.  No further dues payments are recorded after that time.  The TITAN record shows that Gonzalez was suspended from the local union for non-payment of dues on December 1, 2015

Gonzalez produced to our investigator check stubs showing that he continued to work at UPS in August, September, October, November, and December 2015, and earned sufficient wages in each month to fund his dues for that month.  Moreover, Gonzalez remained on dues check-off during the period.  The local union’s recourse to collect delinquent dues from a working check-off member where the employer failed to deduct and remit the dues is to send a bill to Gonzalez.  It has not done so.  Instead, it has suspended him.  As noted, a member on dues check-off retains his good standing even if his dues were remitted late or not at all by the employer, provided he had signed a check-off authorization and had sufficient earnings or paid leave in the month from which dues could have been deducted.  This rule operates to protect Gonzalez’s continuous good standing.

Accordingly, we find that Gonzalez maintained continuous good standing for the entire 24-month eligibility period and is ELIGIBLE to run for delegate.

Gustavo Garcia – Validly Nominated

            Adrian Gonzalez nominated Garcia.  The protest alleged that Gonzalez was ineligible to nominate because he was not in good standing with his dues paid in full through the month prior to the nominations meeting.  As noted, however, Gonzalez was actively employed with sufficient earnings in each month to fund his dues obligation for that month.  Accordingly, he was entitled to rely on his check-off authorization to satisfy his dues obligation and establish his good standing to nominate.

            Accordingly, we DENY this aspect of the protest and find Garcia was validly nominated by Gonzalez.

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 80 

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