November 10, 1998
VIA FACSIMILE AND UPS OVERNIGHT
Jerry L. Carter
November 10, 1998
Page 1
Jerry L. Carter
140 Wells Road
Jenkinsburg, GA 30234
Richard Black, Sec.-Treas.
Teamsters Local Union 728
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
Donald S. Scott, President
Teamsters Local Union 728
2540 Lakewood Avenue, S.W.
Atlanta, GA 30315
Jerry L. Carter
November 10, 1998
Page 1
Re: Election Office Case No. PR-225-LU728-SEC
Gentlemen:
Jerry L. Carter, a member of Local Union 728, filed a pre-election protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) against Richard Black, secretary-treasurer of Local Union 728. The protester alleges that Mr. Black wrongfully issued him an honorable withdrawal card to prevent him from running for local union office in November, 1998, and to prevent him from voting in the International Officer Rerun Election.
Mr. Black admits issuing the protester an honorable withdrawal card, but states he was obligated to do so under the IBT Constitution because the protester failed to pay the monthly assessment fee to remain on the local union’s movie referral list. Mr. Black denies any political motivation.
The protest was investigated by Adjunct Regional Coordinator Maureen Geraghty.
The protester is a member of the local union and is a well-know supporter of James P. Hoffa, a candidate for general president. He has also been an opponent of the local union leadership, and was an unsuccessful candidate for local union president in the last officer’s election. The officers of Local Union 728 are supporters of Tom Leedham, a candidate for general president. Doug Mims, a candidate for Southern Region vice president on the Leedham Slate is a member of Local Union 728.
Jerry L. Carter
November 10, 1998
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Local Union 728 represents members in the movie industry. The protester has worked on and off in the movie industry since 1970, and has been an active member of the local union since 1961. Movie industry work is sporadic. The investigation revealed that it is not uncommon for members working in the movie industry to wait several months or even years for work. Some members work at non-union jobs while they wait for movie assignments. Other members work in other classified jobs intermittently until they are hired on a movie job. To obtain work in the movie industry, some members work under the jurisdiction of sister local unions in New York, New Jersey, California or Tennessee.
In January 1997, the local union began maintaining a movie jobs referral list to keep track of the members who were seeking employment in the movie industry. The local union states that it established this list to insure that its membership lists only included those members seeking work and working at the movie craft, as opposed to those members who did not work at the craft or seek work, but remained on an informal list for movie work assignments.
On April 1, 1997 the local union established “Film, Video, and Entertainment Industry Referral Rules.” These referral rules were amended on October 1, 1998. The movie referral rules provide that in order to remain on the list, a member must pay a bi-annual referral fee at the amount “determined by the Union from time to time and posted at its offices.” It also provides that registered persons will be notified by mail of any increases in fees. If the member pays the fee, the member will automatically be considered working at the craft and will not be issued an honorable withdrawal card. The local union does not check if a member is no longer working or seeking work at the movie craft if the member pays the fee within 10 days of the commencement of the six-month period. The investigation revealed that there are members on this list who have not worked in the movie craft in over two years, but the local has not issued them an honorable withdrawal card due to timely payment of the fee.
In a letter dated December 19, 1997, Mr. Black notified all members on the movie referral list, including the protester, that they must pay the bi-annual $60 referral fee to remain on the list. The letter advised the members that failure to pay the fee would result in permanent removal from the referral list. The protester did not pay the fee and on March 6, he received a letter from Mr. Black advising him that he was suspended from the referral list for the period of January through June 1998, for his failure to pay the fee. On July 23, 1998, the protester received another letter from the local union advising him that he had been permanently removed from the movie referral list because he was overdue for more than six months.
Jerry L. Carter
November 10, 1998
Page 1
In a letter dated August 3, 1998, Mr. Black advised the protester that pursuant to Article XVIII, Section 6(a) of the IBT Constitution, the local union would issue him an honorable withdrawal card because it had no record of his working or actively seeking work in the craft within the local union’s jurisdiction since January 1, 1998, unless he furnished proof of actively seeking work or working within five days of receipt of the letter. On August 7, 1998, the protester wrote to Mr. Black objecting to the issuance of the withdrawal card and detailing numerous recent efforts to seek work at the craft within Local Union 728's jurisdiction. The protester also detailed work he had performed within the jurisdiction of sister local unions. The protester stated that the local union’s actions were unprecedented and that the local union had accepted his dues which were paid through December 1998.
In a letter dated August 11, 1998, the local union enclosed the protester’s honorable withdrawal card and refunded his dues back to January, 1998.
The local union does not dispute that the protester has been seeking work within its jurisdiction or that he was working at the craft outside the local’s jurisdiction. In the short history of the movie referral list, the local union has suspended two other members from the list and thereafter issued them honorable withdrawal cards. One of these individuals was a full-time student and no longer employed at the craft anywhere, and the other was not interested in seeking movie referrals and was working full-time at a non-union operation. In both cases, the local union contacted the member and the member did not object to the issuance of an honorable withdrawal card.
In addition, the local union states that, for members who cash pay their dues, it has no mechanism for determining if they are actually active or employed at the craft, if they are paying their dues. For members on lay-off from an employer, the local union permits them to cash pay their dues, even after six months and maintains such members as active. Local
Union 728 plainly states that it does not issue honorable withdrawal cards to members on layoff more than six months. The local union TITAN operator and bookkeeper advised the investigator that they do not force members to take a withdrawal card after six months of not working at the craft.
The IBT Constitution at Article XVIII, Section 6, provides in pertinent part:
When a member becomes unemployed in the jurisdiction of the Local Union, he shall be issued an honorable withdrawal card upon his request. If no request is made, an honorable withdrawal card must be issued six (6) months after the month in which the member first becomes unemployed, if he is still unemployed at that time.
There is little question that once the protester was removed from the referral list, the issuance of the honorable withdrawal card was required under the IBT Constitution.
Article VIII, Section 11(f) of the Rules provides:
Jerry L. Carter
November 10, 1998
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Retaliation or threat of retaliation by the International Union, any subordinate body, any member of the IBT, any employer or other person or entity against a Union member, officer or employee for exercising any right guaranteed by this or any other Article of the Rules is prohibited.
To demonstrate retaliation, a protester must show that conduct protected by the Rules was a motivating factor in the adverse decision or conduct in dispute. The Election Officer will not find retaliation if he concludes that the union officer or entity would have taken the same action even in the absence of the protester’s protected conduct. Gilmartin, P-032-LU245-PNJ
(January 5, 1996), aff’d, 95 - Elec. App. - 75 (KC) (February 6, 1996). See Leal, P-051- IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995); Wsol, P-095-IBT-CHI (September 20, 1995), aff’d, 95 - Elec. App. - 17 (KC) (October 10, 1995).
Here, the local union readily admits that it does not issue honorable withdrawal cards, despite the clear language in the IBT Constitution, if a member continues to pay his or her dues. The local union has no explanation for why it issued the protester an honorable withdrawal card, except for his suspension from the referral list which does not appear in and of itself to relate to the payment of dues.
Therefore, the Election Officer finds that the local union issued the protester an honorable withdrawal card for his political beliefs, and were at least in part motivated by the protester’s active support for Mr. Hoffa.
Accordingly, the protest is GRANTED.
When the Election Officer determines that the Rules have been violated, he “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.
In this case, although the Election Officer finds that the local union retaliated against the protester by issuing the honorable withdrawal card, the protester should have been issued an honorable withdrawal as should all members of the local union who are unemployed within the jurisdiction of the local union for six months or more. The local union admits that it accepts the payment of dues from cash payers without reference to whether they employed in the jurisdiction of the local union.
In order to remedy the retaliation and to remedy the local unions failure to properly update its membership data, the Election Officer orders the following:
Jerry L. Carter
November 10, 1998
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1. By November 20, 1998, Mr. Carter, if he so chooses, shall deposit his withdrawal card with the local union, pay his back dues, and shall pay $120 to the local union for the referral list fees for January through June and July through December, 1998. Due to the local union’s actions, it shall waive the administrative fee of $100 to restore persons permanently removed from the referral list. Immediately upon receipt of the fees and the withdrawal card, the local union shall place Mr. Carter in an active status. Mr. Carter may then telephone the Election Office at 1-800-565-VOTE in order to receive a ballot in the International Officer Rerun Election. By the close of business on
November 20, 1998, Mr. Black shall submit an affidavit to the Election Officer detailing any action he has taken in compliance with this section of the order.
2. The local union is ordered to immediately review all cash dues payers in the local union and place any member, not on the referral list, who has not worked within the jurisdiction of the local union for six (6) months on honorable withdrawal in accordance with the IBT Constitution. The local union shall complete this action by November 23, 1998 and shall make a full report to the Election Officer by that date detailing what it did to examine its cash dues payers and determine if they are working in the craft within the jurisdiction of the local union.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In re Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
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
Jerry L. Carter
November 10, 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
cc: Kenneth Conboy, Election Appeals Master
Maureen Geraghty, Adjunct Regional Coordinator