Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: GRANT MAERTZ                           )           Protest Decision 2021 ESD 96

and ERIC JIMENEZ,                                   )           Issued: March 31, 2021

                                                                        )           OES Case Nos. P-115-031821-FW

Protestors.                                          )           & P-117-031821-FW

____________________________________)

Grant Maertz, member of Local Union 952 and delegate candidate, filed a post-election protest in Case No. P-115-031821-FW pursuant to Article XIII, Section 3(a) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that the ballot of Harry Gutierrez was improperly challenged.  The protest further alleged that a tie in the ballot tally between two candidates of opposing slates was not resolved by lottery, as the Rules require.

Eric Jimenez, member and principal officer of Local Union 952 and delegate candidate, filed a post-election protest in Case No. P-117-031821-FW.  The protest alleged that the ballots of Raymond Consiglio, Ron Attias, Heriberto Avila, Jerry Hemingway, and Edward Miranda were improperly challenged.

Election Supervisor representative Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

            A full slate, a partial slate, and an independent candidate competed for Local Union 952’s 12 delegate and 5 alternate delegate seats to the IBT convention.  Ballots were tallied March 16, 2021.  The ballots of 100 voters were challenged as ineligible.  Because the election tally was close, all challenged ballots were resolved, with 24 challenged ballots resolved in favor of eligibility and the balance as ineligible.[1]  The tally, with slate designations as applicable, showed the following in the delegates contest, after resolution of challenged ballots:

The tally for the alternate delegate contest, after resolution of challenged ballots, showed the following:

           We examined the challenged ballots identified expressly in the protests.  In addition, pursuant to our authority under Article XIII, Section 4(d), we examined the 74 ballots where the challenge to eligibility was sustained at the count to determine whether additional information not available at the count showed that any of those members were eligible to vote.

Article V, Section 1 of the Rules declares that, to be eligible to vote, a person must be a member in good standing on the date set for tallying ballots, with his/her dues paid through the month prior to the month in which the tally is conducted.  Persons who separated from the employer prior to the tally date, through discharge, resignation, retirement, or death, are generally ineligible to cast votes, even if they were actively employed at the time they mailed their ballots.  Similarly, persons who retained employment rights but were separated from the union prior to the tally date, through honorable withdrawal, resignation of membership, or suspension or expulsion from the union, are generally ineligible to cast votes.

Shop stewards

Two of the challenged ballots identified expressly in the protests were cast by members who served as shop stewards.  In addition to these, we identified one other challenged ballot cast by a member designated as a shop steward.  Pursuant to Article XIII, Section L of its bylaws, Local Union 952 pays the dues of shop stewards.  The bylaws provision states that the local union is not responsible for paying the dues of any member serving as shop steward “in any calendar month” in which the member has ceased to be a shop steward or did not perform bargaining unit work at his/her job site. 

Harry Gutierrez

Harry Gutierrez is a shop steward at Anjelica Linen.  His challenged ballot is the subject of Maertz’s protest.  Gutierrez’s dues payment history showed that the local union paid his dues for December 2020 and January 2021.  On January 14, 2021, the local union reversed the January dues payment when it received a message from Gutierrez’s employer stating that Gutierrez had gone on leave on December 16, 2020.  The local union did not pay Gutierrez’s dues for February 2021 either, apparently assuming that the employer’s communication about his leave of absence remained valid.  The local union did not notify Gutierrez of its decision to reverse his January dues and not pay his February dues.  As a result, Gutierrez’s ballot was challenged because his dues were not paid through February 2021 at the time of the ballot count.

Investigation showed that Gutierrez commenced leave on December 16, 2020 and resumed work on January 27, 2021.  He has continued working since that return date.  Under the local union bylaws, the local union was required to pay his dues for December, January, and February (and ongoing) because he remained a shop steward and he performed bargaining unit work in each calendar month at issue here.  Therefore, he was eligible to vote in the election, where the lack of dues payments to his history in January and February 2021 was the result of the local union’s failure to follow its bylaws.

Accordingly, we OVERRULE the challenge, direct that Gutierrez’s ballot be counted, and direct the local union to update Gutierrez’s dues payment history to credit his dues for each month commencing January 2021 and continuing through present.

Raymond Consiglio

            Consiglio is a shop steward at OCTA.  His challenged ballot is the subject of Jimenez’s protest.  Consiglio’s dues payment history shows that the local union last paid his dues in April 2020, 11 months before the ballot count.  Investigation showed that Consiglio has remained a shop steward and performed bargaining unit work in each month since April 2020.  Under the local union bylaws, the local union was required to pay his dues for each month it failed to do so (May 2020 through present).  The local union’s failure to pay his dues appears to be the result of an error.  Therefore, Consiglio was eligible to vote in the election, where the lack of dues payments to his history over 11 months was the result of the local union’s failure to follow its bylaws.

Accordingly, we OVERRULE the challenge, direct that Consiglio’s ballot be counted, and direct the local union to update Consiglio’s dues payment history to credit his dues for each month commencing May 2020 and continuing through present.

Edward Acevedo

            Acevedo is a shop steward at American Linen.  We examined his challenged ballot on our own authority.  Acevedo’s dues payment history shows that the local union last paid his dues in January 2021.  The history also includes a note that Acevedo was “removed as stw 2/1/2021.”  For this reason, the local union did not pay Acevedo’s dues for February 2021, which generated the challenge to his ballot.

            Investigation showed that the note in Acevedo’s dues history was incorrect and that Acevedo remained a steward in February 2021.  The local union’s failure to pay his dues for that month was the result of error.  Therefore, Acevedo was eligible to vote in the election, where the lack of dues payments to his history in February 2021 was the result of the local union’s failure to follow its bylaws.

Accordingly, we OVERRULE the challenge, direct that Acevedo’s ballot be counted, and direct the local union to update Acevedo’s dues payment history to credit his dues for each month commencing February 2021 and continuing through present.[2]

Alleged retiree

Randall Johnson

            Johnson is a truck driver for Albertson’s.  We examined his challenged ballot on our own authority.  At the time of the ballot count, Johnson’s dues were paid through February 2021.  His ballot was challenged because of a note in his dues history stating that he is “retiring 4/12/2021.”

            Investigation showed that Johnson remained employed and had not retired as of the date of the ballot count.  Therefore, he was eligible to vote in the election.

Accordingly, we OVERRULE the challenge and direct that Johnson’s ballot be counted. 

Alleged transfers

Ron Attias, Heriberto Avila, and Edward Miranda

            These persons were employed by UPS at the Santa Ana hub, which is under the jurisdiction of Local Union 952.  Their ballots were challenged as transfers to another local union.  At the ballot count, these challenges were sustained and the ballots were not counted.  Jimenez protests this determination.

Investigation showed that in fall 2020, UPS announced a change of operations by which these persons were to transfer to its La Mirada hub, a facility that is under the jurisdiction of Local Union 396.  The dues history of each person was updated to show the transfer from Local Union 952 to Local Union 396.  Each person continued to work and pay dues by check-off, which UPS routed to Local Union 396.  However, UPS never implemented the change of operation by assigning them to La Mirada, and they remained employed at the Santa Ana hub on a continuous basis.  In 2021, UPS rescinded the change of operations as it relates to these persons.  As a result, Attias, Avila, and Miranda continued at Santa Ana and never worked at La Mirada and were eligible to vote in Local Union 952’s delegates and alternate delegates election.

Based on this investigation, we OVERRULE the challenges and direct that the ballots of Attias, Avila, and Miranda be counted.[3]

New Check-off member

Roberto Piñeda

Piñeda’s ballot was challenged because the last month of dues credited to him was January 2021.  We examined his challenged ballot on our own authority. 

Investigation showed that Piñeda was hired by Bimbo Bakeries in September 2020.  He paid his initiation fee and 4 months’ dues on January 27, 2021, executing a check-off authorization at the same time.  The authorization was signed after the date the local union sent the dues bill to Bimbo for February.  For this reason, Piñeda’s name did not appear on the bill.  Nonetheless, he was entitled to rely on the check-off authorization for payment of his February (and subsequent) dues.

Accordingly, we OVERRULE the challenge and direct that Piñeda’s ballot be counted.

Conclusion

            Based on the foregoing, we will open and tally the ballots of Harry Gutierrez, Raymond Consiglio, Edward Acevedo, Randall Johnson, Ron Attias, Heriberto Avila, Edward Miranda, and Roberto Piñeda, and add the tally to the votes already tallied.

            We deny Maertz’s request that the tie in the original tally between John Green and Harry Gutierrez, members of opposing slates, be resolved by lottery, concluding that the request has been mooted by our decision here.  However, we will conduct a lottery to resolve any tie between elected candidates on opposing slates that results from the revised tally.

            The election materials for Local Union 952’s election, including all unopened challenged ballots, were shipped to OES’s office in Washington, D.C. on March 18, 2021.  For this reason, the additional counting of ballots required by this decision will be conducted by OES staff in Washington on Monday, April 5, 2021 at 1:00 p.m. EDT/10:00 a.m. PDT.  Any candidate or designated observer wishing to participate will be afforded the opportunity to attend by Zoom video conference.

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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2021 ESD 96

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
braymond@teamster.org

Edward Gleason
egleason@gleasonlawdc.com

Patrick Szymanski
szymanskip@me.com

Will Bloom
wbloom@dsgchicago.com

Tom Geoghegan
tgeoghegan@dsgchicago.com

Rob Colone
rmcolone@hotmail.com

Barbara Harvey
blmharvey@sbcglobal.net

Kevin Moore
Mooregp2021@gmail.com

F.C. “Chris” Silvera
fitzverity@aol.com

Fred Zuckerman
fredzuckerman@aol.com

Ken Paff
Teamsters for a Democratic Union
ken@tdu.org

Teamsters Local Union 952
office@teamsters952.org
Grant Maertz
Gmaertz952@gmail.com

Eric Jimenez
ejimenez@teamsters952.org

Patrick Kelly
Pdk952@aol.com

Michael Miller
Miller.michael.j@verizon.net

Deborah Schaaf
dschaaf@ibtvote.org

Jeffrey Ellison
EllisonEsq@gmail.com