IN RE: BOB HASEGAWA,
Protest Decision 2001 EAD 505
Issued: October 15, 2001
OEA Case No. PR082213WE
Bob Hasegawa, a member of Local 174 and an International officer candidate, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") against Local 174 secretary-treasurer Scott Sullivan and vice-president Rick Hicks. He alleges that they have "illegally converted Local 174 funds for their personal benefit." He also alleges that Sullivan "has no intention of paying … pension and benefit contributions which were lost [by Hasegawa and other Local 174 IBT convention delegates] during the week of the Convention, even though they themselves were paid this benefit."
Election Administrator representative Lois Tuttle investigated the protest.
Findings of Fact and Analysis
1. We DENY Hasegawa's first protest allegation alleging "illegal conversion" of Local 174 funds as untimely. Hasegawa's protest was filed on August 22, 2001, some seven weeks after the close of the IBT convention. Our investigation revealed that at least as early as mid-July, Hasegawa and other Local 174 delegates knew that they Local 174 and other Joint Council 28 local unions had decided to pay convention delegates a flat sum of $1800.00 for convention expenses, rather than reimbursement to each delegate of the actual costs of their expenses, such as airfare, hotel, meals and such. While Hasegawa corresponded with the local union about this, he failed to file his protest until much later.
Hasegawa alleges that the conduct of Sullivan and Hicks is "illegal conversion" of union funds. Not so. In fact, Local 174, and other locals in Joint Council 28, followed past practice of appropriating a fixed sum for reimbursement, with money drawn from a Joint Council fund created for this purpose, and funded from a portion of the per capita taxes paid to the Joint Council. Nothing here even approaches Hasegawa's claims of fraud, and thus nothing here warrants a waiver, for prudential purposes, of the protest-filing time limit applicable to this allegation pursuant to Article XIII, Section 2(b) of the Rules.
Nevertheless, for future consideration we think it appropriate to address the Joint Council 28 practice compared to the requirements of Article III, Section 3(d) of the Rules and our Advisory Regarding Campaign Expenses (April 19, 2001). Article III, Section 3(d) provides that local unions "shall pay the actual, reasonable expenses of elected delegates, including expenses for travel, hotel and per diem expenses." The Advisory effectuated this provision by addressing the appropriate payments for hotel, per diem, travel costs. Maximum per diem and hotel rates were established, and travel and other costs were also addressed.
The method chosen by Local 174, and other locals within Joint Council 28, sets a flat amount for reimbursement, rather than providing for a fixed per diem and reimbursement of actual expenses for travel and hotel costs. Thus, a delegate spending less than the flat amount for these items receives a payment from the local in excess of reimbursable expenses. Had a timely protest been filed challenging this practice, we would have been constrained to grant it given our Advisory and the clarity of Article III, Section 3(d)'s requirement that only "actual, reasonable expenses" be reimbursed. We reject, however, any claim that Local 174's practice is in bad faith or motivated by intent to defraud the local. Such a result would simply be required because of the express requirement of the Rules.
2. Hasegawa's second protest allegation concerns the alleged inequality of treatment regarding health and welfare and pension contributions between Local 174 delegates and alternates employed by the local and those not so employed. The former had no interruption in the payment of such contributions because they continued to be treated as employees of the local during convention week. Those in the latter category could, at least theoretically, suffer a loss as a result of their convention attendance.
We deem this protest allegation as RESOLVED. Local 174 has informed us that it "is willing to assist its delegates and alternate delegates in making any health and welfare payments to relevant trust funds for the week in which they attended the IBT Convention. That is, if any delegates or alternates lost coverage in the month of July, 2001 by reason of their attendance at the Convention, the Local will assist in attempting to persuade their employer to accept contributions from Local 174 on behalf of the delegate or alternate, for transmittal to the relevant health and welfare fund." The local notes that this may well not be necessary, "since missing a week's work will not ordinarily disqualify a worker from health and welfare coverage under our collective bargaining agreements."
Similarly, Local 174 has agreed to "assist its delegates and alternate delegates in making any pension payments to relevant trust funds for the week in which they attended the IBT Convention." However, the local correctly notes that "many of Local 174's contracts contain both a monthly and a yearly 'cap' on hours for which pension contributions are due…" and that it will therefore be necessary to wait until the end of the year to determine whether the delegate or alternate has reached the yearly "cap." A member as to whom the cap has been reached will have suffered no loss in pension contributions, and there will thus be no make-whole contribution for Local 174 to pay. For those not reaching the "cap" at year's end, Local 174 has agreed to reimburse the convention attendee's employer for the missed convention week contributions, so that the employer will make the contribution to the relevant pension fund. These commitments satisfy the concerns raised by this protest allegation.
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 Administrator 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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15th Street NW, Tenth Floor, Washington, DC 20005 (facsimile: 202-454-1501), all within the time prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
2001 EAD 505
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
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Raymond, Ferrara & Feldman
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J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
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Barbara Harvey
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Detroit, MI 48226
Betty Grdina
Yablonski, Both & Edelman
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Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Todd Thompson
209 Pennsylvania Ave., SE
Washington, DC 20003
Matt Ginsburg
30 Third Avenue
Brooklyn, NY 11271
James L. Hicks, Jr., P.C.
Suite 1100
2777 N. Stemmons Freeway
Dallas, TX 75207
IBT Local 174
553 John St.
Seattle, WA 98109
Bob Hasegawa
3121 16th Ave. So.
Seattle, WA 98144
Kenneth J. Pederson
101 Elliott Avenue West
Suite 550
Seattle, WA 98119
IBT Joint Council 28
553 John St.
Seattle, WA 98109