Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: RUBEN MORENO,                       )           Protest Decision 2016 ESD 350

                                                                        )           Issued: December 20, 2016

            Protestor.                                           )           OES Case No. P-269-042216-FW     

____________________________________)                      

Ruben Moreno, member of 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 the local union attempted to coerce him to go on honorable withdrawal status.

            Election Supervisor representative Deborah Schaaf investigated this protest.

Findings of Fact and Analysis

The protest alleged that Local Union 439 engaged in prohibited coercion under the Rules by sending the protestor an application for honorable withdrawal card.  The card, if completed by a member eligible to do so, would excuse the member from the obligation to pay dues while on honorable withdrawal status.  The honorable withdrawal status could also interrupt the 24 months of continuous good standing a member must establish in order to be eligible for nomination to local union office, including local union delegate or alternate delegate. 

The envelope’s postmark shows that it was mailed on March 2, 2016.  At the time the envelope containing the card was mailed, the protestor’s dues were paid in full through March 2016, the result of a cash payment of dues he made on January 26, 2016.

The protestor stood as a candidate for delegate from Local Union 439, and he was nominated for that position on February 17, 2016.  We found him eligible for that nomination in Eligibility of Moreno, Flores, & Hernandez, 2016 ESD 124 (February 27, 2016), aff’d, 2016 EAM 12 (March 4, 2016).

The protestor alleged that the local union’s mailing of the withdrawal card to him was a “devious and unscrupulous” act to “to try to trick me into voluntarily take a withdrawal thus making myself ineligible from running in the local’s elections.”

We DENY this protest for three reasons.  First, although the withdrawal card was received shortly after its March 2, 2016 mailing, the protestor did not file the protest until April 22, 2016, well beyond the two working day time limit established by Article XIII, Section 2(b) of the Rules.  Second, Moreno did not take withdrawal but if he had done so it would not have affected his eligibility to run for delegate.  Eligibility for nomination is tested as of the nomination date and, as noted, Moreno met the rigorous 24-month continuous good standing requirement when nominations were completed in February 2016.  A break in continuous good standing post-nomination would not have negated his nomination eligibility.  Eligibility of Lylwyn Torres, 2016 ESD 214 (May 23, 2016) (candidate who meets eligibility criteria as of nomination date is not rendered ineligible retroactively because, post-nomination, the candidate is not employed under jurisdiction of the local).  Had Moreno signed the withdrawal and been elected as a delegate, he could have qualified as a delegate simply by paying dues, in advance of the convention, to restore his good standing through May 2016.  Id.  In any case, Moreno did not sign the withdrawal card and he was among the losing candidates in the delegate election so the circumstances for applying these rules for delegate service never arose.[1]  Finally, the Rules establish the authority of the Election Supervisor to supervise local union delegate and alternate delegate elections and the International officers election, and we exercised that authority when we found the protestor eligible for nomination to delegate.  As the protestor contended that the local union’s act in sending him a withdrawal card was to induce him to render himself ineligible for the local union officers election, we have no jurisdiction to review or decide the protest.

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 350

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