OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: MARIO FLORES, ) Protest Decision 2016 ESD 146
) Issued: March 15, 2016
Protestor. ) OES Case Nos. P-203-030316-FW
____________________________________)
Mario Flores, member and delegate candidate in Local Union 439, 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 Local Union 439 and its principal officer, Ken Guertin, retaliated against Flores for activity protected by the Rules.
Election Supervisor representative Jeffrey Ellison investigated this protest.
Findings of Fact and Analysis
In Eligibility of Moreno, 2016 ESD 124 (February 27, 2016), aff’d, 16 EAM 12 (March 4, 2016), we denied two protests and held Flores eligible for nomination as delegate in Local Union 439’s delegates and alternate delegates election, finding that he satisfied the work at the craft eligibility criterion, the only basis cited in the challenges to his eligibility. On appeal, both protestors changed the basis of their challenges, contending for the first time that Flores had failed, commencing in or about February 2015, to pay any dues or to pay the proper rate of dues and therefore was ineligible for nomination.
To bolster his claim in his appeal filed February 29, 2016, protestor Ken Guertin, secretary-treasurer and principal officer of Local Union 439, presented a TITAN printout generated February 29, 2016 that showed a retroactive adjustment to Flores’s dues record made that same day. The adjustment altered the dues rate of $15 per month the local union had been charging Flores, retroactively increasing it to $72 per month effective February 2015. The rate was further increased to $73 per month, effective July 2015. The effect of this retroactive adjustment was to change Flores’s “paid through” date from July 2016 to April 2015 and to leave him in arrears in the amount of $732. The day after this retroactive adjustment to Flores’s dues record, the local union sent Flores a letter directing him to pay the arrearage by March 14, 2016 or face suspension from membership. Election Appeals Master Roberts denied the appeal and sustained the Election Supervisor’s decision. 06 EAM 12 (March 4, 2016).
Flores filed this protest, alleging that the retroactive dues increase constituted prohibited retaliation for his delegate candidacy, as activity protected by the Rules.
Guertin justified the February 29, 2016 retroactive dues increase as follows. He told our investigator that he learned for the first time when reviewing our decision in Eligibility of Moreno that Flores had attended training at the Northern California Teamsters Apprentice Training and Education Fund (NCTAT) in February 2015. Guertin or a local union staff member contacted NCTAT on February 29, 2016 and confirmed that Flores attended Truck Mounted Crane/Knuckle Boom training commencing Monday, February 9, 2015 and concluding Friday, February 20, 2015. Guertin said that the local union TITAN operator told him that Flores’s receipt of training from NCTAT had two consequences: first, the TITAN operator said that Flores was required to pay full construction dues ($72 per month) for the month in which training occurred; second, Flores was required to continue at the construction dues rate following the training, unless Flores notified the local union (which he did not) that he wished to return to the $15 rate for members registered on the Out Of Work Construction List (OOWCL). Guertin told our investigator that when he learned this information he instructed the TITAN operator to do what she would normally do in this circumstance. According to Guertin, the TITAN operator then made a retroactive adjustment to Flores’s dues record to change his dues rate from $15 to $72 per month for February 2015, the month in which he received the training, and thereafter, given that Flores had not expressly requested to remain on the OOWCL following the training, to change his dues rate from $15 to $72 per month ($73 per month, beginning July 2015, owing to a dues increase) for each successive month through present.
Before the change was made to Flores’s dues record, he had a “paid through” date of July 2016, his dues calculated at $15 per month because of his registration on the OOWCL. Following the retroactive adjustment to his dues record, Flores’s TITAN showed a “paid through” date of April 2015, and an arrearage for the months May 2015 through February 2016 of $732.
Guertin, Local Union 439’s secretary-treasurer, asserted to our investigator that he did not understand how TITAN works or what the reasons were that justified the dues adjustment. He denied that the adjustment was made because of Flores’s delegate candidacy. According to Guertin, a delegate candidate himself, Flores’s presence on the ballot helps Guertin’s candidacy, and Guertin claimed – despite his previous protest seeking to disqualify Flores as ineligible for nomination – that he did not wish to do anything to cause Flores to be removed from the ballot. Guertin directed our investigator to Kimberly Powers, the TITAN operator involved, for a detailed explanation of the action taken and why it was done.
Powers told our investigator that members enrolled in training at NCTAT are required to pay the construction dues rate for the month(s) in which the training occurred. She stated that this requirement was found in Rule 9 of the Teamsters Local 439 Construction Hiring Hall Rules, viz.
All members shall pay a minimum of $15.00 fifteen dollars a month service charge, only for the time being as out of work. When dispatched to work the full dues rate shall be paid, whatever the rate is at the time.
Powers explained that the phrase, “[w]hen dispatched to work,” included enrollment in training at the NCTAT, training being a circumstance in which “the full dues rate shall be paid.” She provided two examples of other members of Local Union 439 who paid the construction dues rate in months that corresponded with NCTAT training. The construction referral rules as written do not require the higher rate, and Powers conceded that. She stated that she tries to remember to tell members applying for training that they will be required to pay construction dues for the months in which the training takes place, but she could not state that she actually so notified all members who enrolled in training. When asked specifically whether she told Flores of the higher dues rate for the month in which he attended training, she stated she could not recall doing so.
Powers further stated that Flores failed to report back to the local union following completion of his training that he had completed the training and wished to remain on the OOWCL. Nothing in the construction referral rules states that a member completing training must report the completed training to the local union and request to remain on the list. As with the construction dues rate during training, Powers stated that she could not recall telling Flores that he had an obligation to report to the local union after completing training and to request to remain on the OOWCL.
Powers justified the retroactive increase of Flores’s dues by citing two examples of members who were on withdrawal status and then returned to work under the local union’s jurisdiction earning a union wage, yet the employer did not deduct and remit dues because the local union did not include the member’s name on the pre-bill list for dues check-off. In both situations, Powers stated that, when the local union discovered the omission, the member was taken off withdrawal retroactive to the date he returned to work and was required to pay accrued dues from that date to the present. Powers stated that these examples justified the treatment accorded Flores, even though he was never on withdrawal status and did not return to work under Local Union 439’s jurisdiction earning a union wage. Rather, it was Flores’s purported failure to request continuation on the OOWCL following completion of training, according to Powers, that dictated the continued obligation to pay construction dues after training was completed. Powers told our investigator that, per her practice at the local union, she could assess members retroactive dues, but a member such as Flores was not permitted to give retroactive notice to the local union that he wished to remain on the OOWCL at the OOWCL rate, even though actual events show that he was on the OOWCL for the entire period from his enrollment in or around December 2014 and continuing through present. Powers presented no example of a retroactive dues increase directly applicable to Flores’s circumstances, i.e., imposed upon a member who completed training and then did not obtain employment under the local union’s jurisdiction.
Flores told our investigator that he applied for training at NCTAT in January 2015, completing the written application for it by presenting it to Guertin for his signature on January 20. In addition, Flores obtained a TITAN printout on January 20, 2015 that showed his dues were current as of that date. He presented these and other materials to NCTAT and was accepted for the Truck Mounted Crane/Knuckle Boom training class in February 2015. Flores stated that neither Guertin nor Powers (nor anyone else at Local Union 439) told him that he was required to pay the construction dues rate while enrolled in training. Further, Flores stated that no one – not Guertin, not Powers, nor anyone else – told him that he was required to report back to the local union following training to request that he remain on the OOWCL or – if he did not – suffer the consequence of paying construction dues on an ongoing basis even though he was not earning a construction wage.
From this investigation, we find there is no written policy, procedure or rule that requires a member of Local Union 439 who is out of work, registered on the OOWCL and paying the OOWCL dues rate to pay the construction dues rate while enrolled in a training class at NCTAT. We likewise find no written policy, procedure, or rule that requires the member who has completed NCTAT training to notify the local union that the training has been completed and request to remain on the OOWCL. Further, we find no written policy, procedure or rule that imposes an obligation on a member who is registered on the OOWCL and undergoes training at NCTAT to pay the construction dues rate on an ongoing basis following training unless he requests to remain on the OOWCL.
We further find that the isolated evidence Powers presented of a practice she imposed of assessing construction dues for members enrolled in NCTAT training is not authorized by the IBT constitution, Local Union 439 bylaws, or written policy, procedure or rule. Accordingly, we hold that the imposition of a retroactive dues increase on Flores was without authority under any governing document.
Article VII, Section 12(g) prohibits retaliation for activity protected by the Rules. We find such retaliation here. The imposition of the retroactive dues increase by Local Union 439 upon Flores was done at the behest of Guertin, the principal officer of the local union, and was undertaken in the context of an appeal of a protest decision by which Guertin sought to strike Flores’s name from the ballot in the delegates and alternate delegates election. These facts compel the conclusion that Guertin’s action was motivated because of Flores’s delegate candidacy, and therefore violates the Rules as prohibited retaliation. While Guertin claims he was ignorant that Flores went for training at NCTAT, we do not credit this assertion in light of the fact that Guertin signed Flores’s training application. Moreover, we do not credit Guertin’s claim that he took a “hands off” approach with respect to the retroactive adjustment of Flores’s dues rate, instructing Powers merely that she was to do what she would normally do. That assertion is not credible in light of Guertin’s status as a candidate adverse to Flores, with a personal interest in attempting to block Flores’s candidacy. Guertin’s effort to deflect responsibility for the dues increase from himself by claiming that he “[doesn’t] understand TITAN” and leaving it to a staff member to take whatever action she sees as fit is inappropriate given his responsibility as secretary-treasurer and principal officer, particularly where that deflection conveniently promotes his personal interest in impairing Flores’s candidacy.
For these reasons, we GRANT the protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.” Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process. “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.” Hailstone & Martinez, 10 EAM 7 (September 14, 2010).
We order Local Union 439 and Ken Guertin to cease and desist from retaliating against Mario Flores and any other member for activity protected by the Rules.
In addition, we order Local Union 439 to take the following action:
- Rescind the retroactive dues increase imposed on Flores;
- Deliver a letter to Flores rescinding the retroactive dues imposed in the letter dated March 1, 2016 and revoking the request for payment of $732 set forth in that letter;
- Amend TITAN records to show that Flores has paid dues of $15 per month from January 2015, has a current paid through date of July 2016, and is properly taxed at a rate of $15 per month for the period January 2015 through present; and
- Post the notice attached to this decision on all union worksite bulletin boards under the jurisdiction of Local Union 439.
The foregoing actions are to be accomplished no later than Friday, March 18, 2016. By Monday, March 21, 2016, Guertin will submit to OES an affidavit of compliance with this order. The notice ordered posted shall remain posted until April 22, 2016 and shall not be defaced or covered up.
A decision of the Election Supervisor takes immediate effect unless stayed. Lopez, 96 EAM 73 (February 13, 1996).
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, 34th 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 17th 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 146
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001
braymond@teamster.org
David J. Hoffa
1701 K Street NW, Ste 350
Washington DC 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
Teamsters United
315 Flatbush Avenue, #501
Brooklyn, NY 11217
info@teamstersunited.org
Louie Nikolaidis
350 West 31st Street, Suite 40
New York, NY 10001
lnikolaidis@lcnlaw.com
Julian Gonzalez
350 West 31st Street, Suite 40
New York, NY 10001
jgonzalez@lcnlaw.com
David O’Brien Suetholz
515 Park Avenue
Louisville, KY 45202
dave@unionsidelawyers.com
Fred Zuckerman
P.O. Box 9493
Louisville, KY 40209
fredzuckerman@aol.com
Ken Guertin
96 W. 4th St
Tracy, CA 95376
kg967@sbcglobal.net
Mario Flores
Bigfaces64@yahoo.com
Teamsters Local Union 439
1531 E. Fremont St
Stockton, CA 95205
jade@teamsters439.com
Deborah Schaaf
1521 Grizzly Gulch
Helena, MT 59601
dschaaf@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Suite 212
Ann Arbor, MI 48104
EllisonEsq@aol.com