Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ELIGIBILITY OF                          )           Protest Decision 2016 ESD 144

            TERRY RAWSON,                        )           Issued: March 15, 2016

                                                                        )           OES Case No. E-197-022916-MW

            Local Union 50.                                 )                      

____________________________________)

            Mark Beil, member and secretary-treasurer of Local Union 50, 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 alleged that Terry Rawson is ineligible for nomination as delegate or alternate delegate to the IBT convention for alleged failure to maintain 24 consecutive months of good standing. 

            Election Supervisor representative Jeffrey Ellison 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.”

The nominations meeting for Local Union 50’s delegates and alternate delegates election was held February 28, 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. 

The protest alleged that Rawson is ineligible to stand for election because he made cash payment of dues for December 2015 and January 2016 on February 19, 2016 and therefore was not in good standing for two months during the eligibility period. 

Rawson was principal officer and full-time business agent for Local Union 347 until that local union was merged into Local Union 50 in or around October 2014; at that point, Rawson became vice president and full-time business agent of Local Union 50 until his employment in that full-time position ended on or about September 23, 2015.[1] 

To verify Rawson’s eligibility during this period, we reviewed TITAN records for dues remitted on his behalf.  Rawson’s TITAN showed that he paid dues by check-off authorization for the first eight months of the eligibility period, when he was employed full-time by Local Union 347.  Thereafter, he paid dues by check-off authorization for the next thirteen months of the eligibility period, the last check-off payment being recorded to his TITAN record on September 30, 2015 with a “paid through” date of October 2015.[2]

The protest did not challenge Rawson’s timely payment of dues for November 2015, and TITAN records reflect that he paid his dues through that month by tendering a check on October 21, 2015 for the full amount of dues.  We note, however, that Rawson’s earnings as business agent continued into November 2015 in the form of payout of accrued vacation, and he had sufficient earnings from that source that he could have relied on the existing check-off authorization for November coverage.  Thus, the local union chose to pay Rawson’s vacation entitlement in separate weekly increments attributable to specific weeks in October and November 2015.  The first week of vacation pay (characterized on the paystub as “Vacation Salary”) was attributed to the period October 3 through 9, 2015 and paid by check issued October 9.  The second week of vacation pay was attributed to the period October 24 to 30, 2015 and paid by check issued October 30.  The third week of vacation pay was attributed to the period October 31 to November 6, 2015 and paid by check issued November 6.  The fourth week of vacation pay was attributed to the period November 7 to 13, 2015 and paid by check issued November 13.  The final week of vacation pay was attributed to the period November 14 to 20, 2015 and paid by check issued November 20.  These vacation checks constituted compensation to Rawson for services rendered as an employee of the local union, and withholdings for federal income tax, state income tax, Social Security employee tax, and Medicare employee tax were deducted from each check.  In addition, each vacation check showed a deduction for Rawson’s 401(k) account.  Finally, the vacation check issued October 30, 2015 showed two $10 deductions, one for the local union’s DRIVE[3] fund, the other for the IBT’s.  These earnings for accrued vacation, paid out in specific weeks in October and November, were sufficient to fund Rawson’s dues obligation in those months.  Thus, although Rawson actually maintained continuous good standing by paying his November dues by check, he could have relied on the earnings paid in that month and the existing check-off authorization to maintain his status.

We further note that when his business agent position ended, Rawson had a second income source from Local Union 50 with earnings subject to the check-off authorization.  By written policy, Local Union 50 pays members of the executive board who are not employed on a full-time basis by the local union a monthly salary of $516.67, with the checks issued on the last business day of each month.  Rawson received his October 2015 stipend by check issued October 30; the paystub characterized the payment as “Executive Board Salary.”  As local union vice-president, Rawson was entitled to this payment after his employment as business agent ended.  The local union treats the sum as employee salary:  Rawson’s paystub for his October 2015 executive board salary was labeled “Employee Pay Stub,” had tax withholdings deducted from it, and was remitted to Rawson by direct deposit to his personal account. 

Protestor Beil, who serves as secretary-treasurer of the local union, asserted in his protest that Rawson’s termination from full-time employment in late September 2015 “took him off of dues CkO [check-off].”  Beil had no substantiation in pertinent rules for this assertion.  We find to the contrary that Rawson remained in an employment status with Local Union 50 after his termination from full-time employment in September 2015, by virtue the local union’s commitment to pay all executive board members who are not full-time employees of the local union a monthly executive board salary.  Because Rawson’s employment status with Local Union 50 remains active, so too does his check-off authorization.  This holding is supported by our decision in Eligibility of Reynozo, 2005 ESD 18 (October 25, 2005),[4] where a member laid off from full-time employment with the local union continued as a member of the executive board, for which service he received a monthly stipend.  We held that the check-off authorization he signed when a full-time employee continued during the period he served on the executive board and received a stipend and, because the stipend was sufficient to fund his dues obligation each month, his check-off authorization satisfied his obligation to maintain continuous good standing.

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).

Because Rawson remained on dues check-off with Local Union 50 after his separation from full-time employment with the local union in late September 2015, we now examine whether Rawson had earnings from which dues could be deducted in the two months challenged by the protestor, December 2015 and January 2016.  Local Union 50 did not pay Rawson his executive board salary in November[5] or December 2015 or January 2016.  Protestor Beil told our investigator that Rawson was not paid because he did not attend the local union executive board meeting held in each of those months.  The executive board minutes for November 2015 list all executive board members.  Rawson’s name and that of trustee Ed Weber are labeled “unexcused;” recording secretary Marc Archer’s name is labeled “inactive.”  Beneath this list of board members in the November minutes is the following motion:

Secretary-Treasurer Mark Beil made a motion to revoke Vice President Terry Rawson, Recording Secretary Marc Archer and Trustee Ed Weber November 2015 Executive Board stipend due to unexcused absence.  Trustee Mark Stogner seconded the motion.  The motion was approved unanimously.

Although Rawson’s absence from the December 2015 and January 2016 executive board meetings was labeled “unexcused” in minutes of those meetings, the minutes show the executive board did not adopt a motion similar to that found in the November minutes denying Rawson his executive board salary for those months.  Nonetheless, Rawson was not paid his executive board salary for December or January.

Had the executive board salary been paid to Rawson in those months, it would have constituted sufficient income to fund his dues obligation by check-off for those months.  We find that the local union improperly withheld Rawson’s executive board salary from him in those months.  The written local union policies declaring that executive board members who are not full-time employees of the local union are to be paid a monthly executive board allowance do not require attendance at the local union executive board meeting as a condition for receiving the allowance.  This written policy was adopted pursuant to a provision of Local Union 50’s bylaws which permits the local union executive board to set compensation for executive board members, authority it exercised without specifying that such compensation may be withheld under specific circumstances.  Thus, we conclude that the executive board was without authority in November 2015 to adopt a resolution denying Rawson his executive board compensation for that month, absent written notice to him through bylaws or policy that failure to attend the meeting could result in a forfeiture.  The local union was similarly without authority to deny Rawson’s payments for December 2015 and January 2016 – moreover, the board did not even adopt a resolution that could be a purported basis for nonpayment in those months.[6]  As such, we conclude that Local Union 50 and its executive board wrongly refused or failed to pay Rawson the executive board salary due him in November and December 2015 and January 2016.  Accordingly, we find that Rawson had sufficient earnings from his executive board position with Local Union 50 from which dues for December 2015 and January 2016 could have been deducted.  The local union’s failure to deduct those duties will not cause an interruption in Rawson’s continuous good standing.

The protest also alleged that Rawson is ineligible because of a failure to work at the craft since he was last employed by the local union on a full-time basis.  We reject this allegation as well.

First, Article VI, Section 2(h) of the Rules addresses the work at the craft eligibility criterion for officers of local unions, viz.

All officers and full-time employees … of any affiliate … shall be considered as meeting the requirement of working at the craft within the jurisdiction for the purpose of retaining active membership and of being ruled eligible for election to office.  However, officers who are not full-time employees of an affiliate and who are not otherwise employed at the craft shall not be considered to satisfy the working at the craft requirement by virtue of being an officer for longer than the term of office being served at the time full-time employment at the craft has been terminated.

Rawson was and is an officer of Local Union 50.  He is not presently a full-time employee of the local union nor is he otherwise employed at the craft under the local union’s jurisdiction.  The foregoing provision establishes that he satisfies the work at the craft eligibility requirement for so long as he continues as Local Union 50 vice president, but not longer than the current term of office of that position, which expires following the officers elections Local Union 50 will hold in fall 2017.  Accordingly, Rawson satisfies the work at the craft eligibility criterion under this Rules provision.

            Rawson also satisfied the work at the craft criterion during October and November 2015 because he was receiving vacation pay from the local union that the local union attributed to specific weeks during those months.  A member is working at the craft when he is on paid vacation from craft employment.

            Finally, we find that Rawson also satisfied the work at the craft criterion by registering on the construction referral list at the West Frankfort, IL office of Local Union 50.  Article VI, Section 2(b) of the Rules establishes 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.”  We have held repeatedly that registration on a referral list satisfies the obligation to actively seek and be available for employment in the craft.  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); Eligibility of Moreno, 2016 ESD 124 (February 24, 2016); aff’d, 16 EAM 12 (March 4, 2016).  

Doug Lamb, the business agent assigned to the West Frankfort office, denied to our investigator that Rawson ever registered.  We do not credit this denial.  Instead, we credit Rawson’s statement that he registered, which was corroborated by the statement of Susan Kahl, an office clerical employed at that office until October 30, 2015.  Kahl told our investigator that Rawson came into the West Frankfort office in or around early October 2015, filled out and gave to Kahl the referral list registration material, and Kahl stapled the registration to copies of Rawson’s truck driver license and DOT physical and placed the documents with the registrations of other members on the list.[7]  Kahl further told our investigator that Lamb was in the office when Rawson came in to complete the registration but was either in a meeting or on the phone.  Subsequently, Lamb saw and examined Rawson’s referral list registration and asked Kahl when Rawson had come in to register.  Kahl told him.  Although Lamb denied that he has a registration from Rawson for the referral list, we conclude that this statement, if true, is not because Rawson did not register.  Accordingly, we find that Rawson registered on the out of work referral list.  Based on the precedents cited above, Rawson is not disqualified for failure to work at the craft because of his period of unemployment following loss of full-time work with Local Union 50. 

            Rawson has been unable to obtain employment under the local union’s jurisdiction since separating from full-time work with Local Union 50.  He has taken temporary work outside the craft in the interim.  This work does not render him ineligible for nomination, however.  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 registration 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.’”  See also, Eligibility of Moreno, 2016 ESD 124 (February 24, 2016); aff’d, 16 EAM 12 (March 4, 2016).

Accordingly, we DENY the protest and find Rawson 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 144 

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