Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ELIGIBILITY OF                          )           Protest Decision 2016 ESD 124

            REUBEN MORENO,                      )           Issued: February 27, 2016

            MARIO FLORES, and                    )           OES Case No. E-179-021816-FW

            ESAU HERNANDEZ,                     )                       & E-180-021916-FW

                                                                        )

            Local Union 439.                               )                      

____________________________________)

            Ken Guertin and Dale Wild, members of Local Union 439, filed separate pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  Guertin’s protest alleged that Reuben Moreno, Mario Flores, and Esau Hernandez are ineligible for nomination as delegate or alternate delegate to the IBT convention, Moreno and Flores for failure to work at the craft for 24 consecutive months, and Hernandez because he has been a member of Local Union 439 for less than 24 months.  Wild’s protest alleged that Moreno and Flores are ineligible, Moreno because he was retired for a period of time during the eligibility period, and Flores because he has not worked at the craft under the local union’s jurisdiction since December 2014. 

            These protests were consolidated for investigation and decision.  Election Supervisor representative Jeffrey Ellison investigated them.

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.”

The nominations meeting for Local Union 439’s delegates and alternate delegates election was held February 17, 2016.  Therefore, the 24-month period during which candidates must be in continuous good standing in order to be eligible for nomination ran from February 2014 through January 2016. 

With respect to Moreno, a former business agent of Local Union 439, Guertin’s protest alleged he is ineligible to stand for election because he “was not employed at the craft in Local 439 from January 2015 through June 2015;” Wild’s protest alleged that Moreno is ineligible because “he retired and came out of retirement and obtained employment at Leprino Foods” during the eligibility period.  With respect to Flores, also a former business agent of Local Union 439, Guertin’s protest alleged that he is ineligible because his “last employment at a craft in Local 439 was December of 2014;” Wild’s protest repeated this allegation and also asserted that none of the Rules’ modifications of eligibility stated in Article VI, Section 2 apply to render Flores eligible.  Finally concerning Hernandez, Guertin alleged that he is ineligible because he did not become a member of Local Union 439 until June 2015.

To verify the eligibility of each challenged candidate during this period, we first reviewed TITAN records for dues remitted on their behalf.  Each candidate’s TITAN showed that he timely paid dues by check-off authorization or by direct payment to the local union at all times during the eligibility period we examined. 

We now address the specifics of each challenged candidate.

Reuben Moreno – Eligible

            Moreno’s TITAN record shows that he was employed by Local Union 439 and paid dues by check-off authorization during the first twelve months of the eligibility period, from February 2014 through January 2015.  He was placed on the Local Union 439 Out of Work Construction List (OOWCL) in January 2015 and timely paid the monthly dues of $15 in each month by direct payment to the local union, beginning February 2015 and continuing through June 2015.  In June 2015, Moreno became employed by Leprino Foods, an employer under Local Union 439’s jurisdiction, and paid cash dues for a couple of months before beginning check-off payments from his Leprino earnings.  The TITAN record indicates that Moreno remains employed by Leprino.

            Both protests focus on the period between the end of Moreno’s employment with Local Union 439 and his hiring by Leprino.  Guertin argues that Moreno did not work at the craft during the period he was on Local Union 439’s OOWCL and is ineligible because of that lapse.  Wild contends that Moreno was retired between his job with the local union and his new job with Leprino.  Moreno was unemployed between the two jobs.  Article VI, Section 2(b) of the Rules affirms that “[t]he 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.”  Moreno’s entry on the OOWCL list and timely payment of dues associated with that list satisfied the requirements of Article VI, Section 2(b).  An unemployed member satisfies the obligation to be ready and available for work under the local union’s jurisdiction by maintaining his name on a hiring list.  Eligibility of Duncan, 2006 ESD 55 (January 26, 2006); see also Eligibility of McPartlin, 2011 ESD 79 (January 24, 2011), aff’d, 11 EAM 17 (February 11, 2011) (A member satisfies the working at the craft eligibility requirement if he is on a recall list with an employer under the local union’s jurisdiction).  Based on this precedent, Moreno is not disqualified for failure to work at the craft because of his period of unemployment. 

            We reject Wild’s assertion that Moreno retired and was therefore ineligible.  Moreno did file retirement papers following his loss of employment as business agent; as a result, he obtained medical benefits and a pension check.  At or around the same time, however, he enrolled on the OOWCL, actively seeking employment under the craft, and he eventually found it at Leprino.  When he commenced employment with Leprino his medical benefits under his retirement ceased.  The pension system is aware of his employment status with Leprino.

            Receipt of a pension does not automatically disqualify a member from eligibility for nomination.  Henderson, E119 (February 27, 1996); Evans, 2006 ESD 87 (February 22, 2006), remanded on other grounds, 06 EAM 13 (March 6, 2006), dismissed as moot, 2006 ESD 165 (March 27, 2006).  Instead, we must examine whether the member retains eligibility under the general eligibility requirements or the modifications of those requirements provided by the Rules.  We find that Moreno retained eligibility despite his unemployment and receipt of pension benefits because enrollment on the OOWCL shows that he was actively seeking employment under the jurisdiction of the local union.

We therefore find Moreno ELIGIBLE to stand for election in Local Union 439’s delegates and alternate delegates election.

Mario Flores – Eligible

            Flores’s situation presents issues similar to those of Moreno.  Flores last worked under the jurisdiction of Local Union 439 as a business agent employed by the local union.  Following that employment, he was placed on the OOWCL and remains on that list.  He has timely paid the monthly dues associated with the list.  Unlike Moreno, however, Flores has not obtained active employment under the local union’s jurisdiction since the time his job ended with the local union.  Although neither protest alleged it, investigation showed that Flores is employed as a driver by Aramark.  The Aramark production employees are under contract under the jurisdiction of Local Union 601.  The drivers have been organized by Local Union 601, which is engaged in negotiations with Aramark for a first contract.  The drivers are not presently members of that local union and will not be unless and until a first contract is concluded.  Flores works six days weekly for Aramark.  However, he continues on Local Union 439’s OOWCL and while enrolled on that list has applied with employers under that local union’s jurisdiction, including UPS, UPS Freight, Reddaway Freight, ABF, and Martin Brower.  In addition, he has obtained training as a boom truck crane operator to improve his prospects for referral from the OOWCL.  Finally, he reports that he regularly attends the general membership meetings of Local Union 439.

The exception from the work at the craft requirement provided by Article VI, Section 2(b) requires that the member be “actively seeking and available for employment in the craft and not working outside the craft during such period of unemployment.”  The question presented by these facts is whether Flores has lost the protection of this exception because of his employment with Aramark.  We find he has not.  In Funk, E-86 (February 20, 1996), aff’d, 96 EAM 107 (February 28, 1996), the Election Officer found two members eligible under the work at the craft exception provided by Article VI, Section 2(b) and one member ineligible under this exception.  The first was employed full-time by a local union of the Operating Engineers while also working as a casual employee for an employer under the Teamsters local union’s jurisdiction.  The Election Officer found this member eligible because she was employed under the local union’s jurisdiction, albeit on a casual basis, even though she was also employed full-time with an employer (the Operating Engineers local union) that was not under the jurisdiction.  The second employee meeting the requirements of the work at the craft exception was on a movie wrangler/driver referral list maintained while the local union and worked several non-union jobs while awaiting referral.  The Election Officer found this member eligible as well.  The third member lost his employment under the jurisdiction of the local union and commenced full-time work for a non-union employer without seeking placement on a referral or out-of-work list maintained by the local union.  The Election Officer found him ineligible because he was not actively seeking employment under the jurisdiction of the local union.  With respect to the member enrolled on the movie referral list, the Election Officer wrote:

The Election Officer will not penalize members who are unable to find work in their craft who take temporary or part-time employment outside the craft while actively seeking and available for union employment.  [This member’s] presence on the movie wrangler list demonstrates his willingness and intention to take employment in the craft should it become available.  As a result, [this member] is protected by the exception…

            A different result was reached in Eligibility of Wiggins, E-121 (March 18, 1996), aff’d, 96 EAM 151 (March 27, 1996).  There, a member’s job was transferred by the employer from one local union to another.  The member wished to remain with the first local union but took the transfer for 25 days in order to qualify for five weeks of vacation time.  He then left the job and returned to the first local union to seek employment in that jurisdiction.  The Election Officer found him ineligible under the work at the craft requirement because, during the 25 days he worked under the second local union’s jurisdiction, he was not actively seeking work under the first’s jurisdiction.

            In Eligibility of Duncan, 2006 ESD 55 (January 26, 2006), aff’d, 06 EAM 9 (February 14, 2006), an unemployed member who took part-time work outside the craft remained eligible because of his presence on a local union referral list.  The Election Supervisor held that “[p]lacement on a referral list for a Teamster employer is sufficient to establish the member’s ‘willingness and intention to take employment in that craft should it become available.’”

            Here, we find Flores has maintained his standing on the OOWCL, has timely paid his dues associated with that list, has enhanced his qualifications for referrals under Local Union 439’s jurisdiction by undergoing job-related training, and, in addition to this, has applied for work with a number of employers under the jurisdiction of the local union and regularly attended local union membership meetings.  These facts demonstrate Flores’s active pursuit of employment under the craft of Local Union 439 and his intention to accept such employment should it become available.  Under these circumstances, we conclude that his full-time employment outside the craft does not render him ineligible to stand for nomination.

Accordingly, we find Flores ELIGIBLE for nomination.

Esau Hernandez – Eligible

            Hernandez’s TITAN record showed that he has worked for Safeway for many years.  During the eligibility period, he was employed at Safeway under the jurisdiction of Local Union 150 until the warehouse where he worked was closed.  He then transferred to a warehouse under Local Union 439’s jurisdiction, continuing to pay his dues timely by check-off throughout with no lapse in good standing.  Guertin’s protest argues that Hernandez is ineligible because he has not been a member of Local Union 439 for the entire 24-month eligibility period.  Guertin agrees, however, that Hernandez’s transfer from Local Union 150 to Local Union 439 was involuntary, the result of the employer’s decision to close a warehouse and transfer Hernandez to his new job.  Article VI, Section 2(g) addresses involuntary transfers, viz.

In the case of a member who has been involuntarily transferred from one Local Union to another, such member must have worked at the craft under the jurisdiction of the original Local Union and must have been so employed and in continuous good standing on a cumulative basis in both Local Unions for a total of twenty-four (24) consecutive months prior to the month of nomination.

Hernandez’s history demonstrates that he meets each element of this Rules provision.  Accordingly, he is ELIGIBLE for nomination in Local Union 439’s delegates and alternate delegates election.

For the reasons stated, we DENY the protest and find Moreno, Flores, and Hernandez ELIGIBLE for nomination. 

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 124 

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):