August 27, 1998
VIA UPS OVERNIGHT
Maria Martinez
August 27, 1998
Page 1
Maria Martinez
4114 West Marie
Pasco, WA 99301
Lee Baczwaski, Plant Manager
Iowa Beef Processors
Post Office Box 515
Dakota City, NE 67831
Bruce Pautsch
Assistant Vice - President, Labor Relations
Iowa Beef Processors
Post Office Box 515
Dakota City, NE 67831
John C. Carter, Secy. - Treas.
Teamsters Local Union 556
1750 Portland Street
Walla Walla, WA 99362
Paul Alan Levy, Esq.
Public Citizen Litigation Group
1660 20th Street, NW
Washington, DC 20009
David N. Mark, Esq.
Skinner Building, No. 601
1326 Fifth Ave.
Seattle, WA 98102
Thomas W. Leedham Campaign Office
Post Office Box 15877
Washington, DC XXX-XX-XXXX
Arthur Z. Schwartz, Esq.
Kennedy, Schwartz & Cure, P.C.
113 University Place
New York, NY 10003
Maria Martinez
August 27, 1998
Page 1
Re: Election Office Case Nos. PR-173-LU556-PNW
PR-184-LU556-PNW
Gentlepersons:
Pre-election protests were filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by Maria Martinez, a member of Local Union 556 and a candidate for Western Region International Vice - President on the Tom Leedham Rank and File Power Slate (‘Leedham Slate”) against Iowa Beef Processors (“IBP” or “Employer”) in Pasco, Washington. In PR-173, Ms. Martinez alleged that IBP rescinded its practice of having the chief shop steward perform the insurance clerk job in retaliation for her nomination for an International officer position. In PR-184, Ms. Martinez alleged that IBP refused to grant her an indefinite leave of absence pending resolution of the dispute underlying PR-173, in further retaliation for her nomination and candidacy.
Maria Martinez
August 27, 1998
Page 1
As to PR-173, IBP responded that it was unaware of Ms. Martinez’s nomination in the IBT International officer election. IBP further states that it rescinded Ms. Martinez’s appointment as an insurance clerk due to her job performance. IBP refused to articulate any problems with Ms. Martinez’s job performance and, although provided with ample opportunity to do so, refused to provide any documentation to support its position. As to PR-184, the employer has refused to respond.
These protests were investigated by Regional Coordinator Christine M. Mrak.
Ms. Martinez has been an employee of IBP for ten years. For many of those years, Ms. Martinez has served as a shop steward and is currently the chief shop steward. In March 1998, Local Union 556 decided to change the chief shop steward position from an appointed to an elected position. An election among IBP employees was held in April and Ms. Martinez won the chief shop steward position in that vote. She began serving in this position on May 18.
For the past 20 years, the practice at IBP has been that the chief steward was appointed by the local union and IBP gave the chief steward the position of insurance clerk at IBP. The insurance clerk is responsible for orienting new hires to union security requirements and the three insurance plans available to the employees. The insurance clerk explains the different insurance plans to the new hires, completes the insurance paperwork, and insures that the forms go to the right places. In addition, the insurance clerk is the intermediary between the employee and the insurance companies if there is any problem with the insurance.
Traditionally, the chief steward/insurance clerk was paid the highest maintenance rate. This was true for the first three insurance clerks who came out of the maintenance department, and the insurance clerk which immediately preceded Ms. Martinez who was an employee out of the production department.
On March 20, 1998, IBP Assistant Vice - President for Labor Relations, Bruce Pautsch, sent a letter to Local Union 556 Secretary - Treasurer John Carter stating that the IBP had become aware that the local union might change the selection process for the chief steward and that the “[IBP] reserve[s] the right with proper notice to change the manner in which the chief steward is paid . . .”. Mr. Carter responded to this letter with a telephone call to Mr. Pautsch advising him that the union’s selection process was not the employer’s business.
After Ms. Martinez was elected chief steward, IBP advised Mr. Carter that it intended to pay her, as the insurance clerk, the wage rate she received in her production job. Thus, Ms. Martinez was not to receive the highest maintenance rate, and was to be paid less than her predecessors as insurance clerk. On May 27, 1998, Mr. Carter filed a grievance protesting this pay rate as a violation of past practice. That grievance has not been resolved and has now been referred to arbitration.
Maria Martinez
August 27, 1998
Page 1
Ms. Martinez was supplementally nominated as a candidate for IBT International vice - president on June 29, 1998. Ms. Martinez maintains that IBP officials were well aware of her candidacy in that she openly discussed it at a rally on June 28 which was attended by 150 workers and the media; her candidacy was prominently featured in the June/July issue of Convoy Dispatch which was widely distributed to IBP workers during the week of June 29; Ms. Martinez gave a copy of the Convoy Dispatch to a co-worker who she believes gave it to management; and employees in the plant were discussing her candidacy during that week because it was a “big deal” to have a co-worker run for International office.
On July 9, IBP Plant Manager Lee Baczwaski informed Mr. Carter that the IBP would no longer have the chief steward perform the insurance clerk functions. This was followed up with a letter to Mr. Carter from Mr. Baczwaski on July 10, which also stated, “As a result of this change, your steward’s last day in this position will be July 24, 1998. In addition, IBP will no longer pay your full-time union steward, but she may return to her previous job on the production floor on Monday, July 27, 1998.” On July 14 and again on July 16, Mr. Carter filed a grievance over the IBP’s actions. In addition, on July 16, the local union filed an unfair labor practice charge with the National Labor Relations Board over the IBP’s actions. The grievances and the charge before the NLRB are pending.
During the third week of July, Mr. Carter asked Mr. Baczwaski to grant Ms. Martinez an indefinite leave of absence during which the local union would pay her to perform the chief steward functions at IBP. The local union requested that the leave be granted until the dispute was resolved through arbitration or the unfair labor practice proceeding. Mr. Baczwaski refused, stating that the collective bargaining agreement did not require him to grant the leave request. Mr. Carter concedes that the express language of the collective bargaining agreement does not require that such leave be granted but in 1983 or1984 the IBP granted an employee a 90-day leave to work as a union business agent.
The protester and Mr. Carter argue that IBP’s actions of forcing Ms. Martinez to return to her production job effectively restricts her ability to campaign for International office. In her processing job, Ms. Martinez has to work six days a week and has greater restrictions on scheduling vacations and days off, whereas as the sole insurance clerk, she had flexibility and only worked a five-day week. Ms. Martinez has requested and been granted vacation leave during which she intends to campaign for one week in August and one week in September. She has been advised by IBP, although she has not yet formally requested it, that she can take another week of vacation in November.
Ms. Martinez states that there has never been a problem with the quality of her work. IBP’s Mr. Pautsch, in the one interview provided to the Election Office Regional Coordinator, said he could not identify any particular problem with Ms. Martinez’s work.
Maria Martinez
August 27, 1998
Page 1
Ms. Martinez was active on behalf of IBT members in the IBP plant. In addition to running for International office, Martinez is the plaintiff in a wage and hour class action filed against IBP around July 1, 1998, in federal district court. She has also been involved in safety complaints against IBP and has been a more active steward than the others.
Ms. Martinez’s protest raises the issue of whether the Election Officer should avoid considering the matter in deference to the arbitration and unfair labor practice process. While the timing of Ms. Martinez’s removal from the insurance clerk position is proximate to her candidacy, it is also proximate to other events such as the lawsuit filed on July 1, 1998. Moreover, the issues presented here can be fully resolved in other forums. In making a decision to defer this matter, the Election Officer notes that Ms. Martinez has been able to request and receive vacation time during which to campaign.
Therefore, the Election Officer has determined to defer his decision in this matter until the conclusion of the grievance procedure pursuant to the Collective Bargaining Agreement. The Election Officer has, pursuant to the Rules, jurisdiction and authority to determine the instant protests on their merits, however the matters at issue here are primarily collective bargaining related. Further, the Election Officer is not bound, in whole or in part, by the decision reached in the grievance proceedings or by the Findings of Fact and Conclusions of Law made during the grievance process. See, Star Market, Case No. P-760-LU25-ENG, aff'd, 91 - Elec. App. - 187; aff'd, U.S. v. IBT, 776 F.Supp. 144; aff'd, 954 F.2d 801 (2d Cir. 1992).
Thus, while the Election Officer will defer his decision in this matter, he has the authority to conduct an independent investigation of the allegations of the protest and issue a decision on the merits of the protest based upon his determination and evaluation of the evidence presented to him in such independent investigation. Ms. Martinez is advised to inform the Election Officer of the outcome of this matter following completion of the grievance procedure under the Collective Bargaining Agreement.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax: (212) 751-4864
Maria Martinez
August 27, 1998
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
MGC:chh
cc: Kenneth Conboy, Election Appeals Master
Christine M. Mrak, Regional Coordinator