IN RE: JOHNNY GABRIEL, Protestor
Protest Decision 2006 ESD 164
Issued: March 27, 2006
OES Case Nos. P-06-174-022406-SO
Johnny Gabriel, a member of Local Union 728, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that local union business agent Donnie Dixon served as an observer for the Members First, Strong Contracts, Good Pensions slate at the mailing of ballots in the delegate and alternate delegate election while on union-paid time.
On February 27, 2006, we issued decision 2006 ESD 119 denying this protest for failure to state a violation of the Rules. On March 6, 2006 and after further review, we withdrew our previous decision and reopened the investigation of this protest. 2006 ESD 134. We now issue our decision on the merits.
Election Supervisor representative Dolores C. Hall investigated this protest.
Findings of Fact and Analysis
Donnie Dixon, a business agent for Local Union 728, served as an observer for a slate of candidates at the ballot printing and mailing conducted on February 21, 2006. Protestor Gabriel alleged that Dixon served in such capacity while on union-paid time, in violation of the Rules.
Dixon's daily calendar shows that he ended his observer service at 2:00 p.m. on February 21. He spent the balance of the day performing his duties as business agent. Thus, upon his departure from the post office where ballots were mailed, Dixon made and answered phone calls en route to the union hall; he spent the balance of his work day examining and processing grievances until 10:05 p.m. As such, Dixon asserts that he worked 8 hours on February 21, all of which was performed after completing his observer duties.
Larry McDonald, secretary-treasurer of the local union, told our investigator that business agents are on salary and are paid for 47 hours per week. However, because many segments of the membership that business agents service run 24 hours per day and on weekends, business agents do not have set starting and ending times. Rather, they are responsible for completing their work and fulfilling their 47 hours weekly. Unlike the local union's clerical employees, business agents do not punch a time clock.
McDonald further stated that Dixon is responsible for employers at some distance from the local union hall. Accordingly, Dixon has been provided with one of the local union's two laptop computers so he may perform his work away from the office. Dixon uses the computer to prepare and send in his reports on pending matters. Local union policy requires business agents to turn in their weekly activity reports and day planners, which are used in part to determine whether they have performed the week's allotted hours of work.
Gabriel disputes that Dixon stopped work as an observer at 2:00 p.m. Further, he asserts that allowing a business agent to say he was working at home after normal business hours is "ridiculous," unless someone else is present who can verify that the business agent actually is working. However, Gabriel offered no evidence to counter Dixon's day planner documenting time spent performing business agent duties.
Article IX, Section 1(f) states that "[t]ime spent observing shall be considered as time spent on Union business." This provision "is addressed only to the means by which employees are to be excused from work to serve as observers, and not to their compensation by their local union for time spent performing that service." Kleckner, 2001 EAD 297 (April 9, 2001). Employees of the local union who serve as observers must take vacation or unpaid time off for such purpose. Id.
Although Gabriel complains, among other things, that Dixon should not be permitted to fulfill his weekly work requirement with work performed at his home, such complaints are beyond the scope of our authority. Our focus here is whether Dixon observed ballot printing and mailing on time paid for by the union. We find insufficient evidence that Dixon did. Accordingly, we DENY this 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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark Election Supervisor
cc: Kenneth Conboy 2006 ESD 164
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue,
NW Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue,
NW Washington, DC 20001-2198
sriger@teamster.org
David J. Hoffa, Esq. Hoffa 2006
30300 Northwestern Highway,
Suite 324 Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel Clifton Lewis,
Clifton & Nikolaidis, P.C.
275 Seventh Avenue, #2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Johnny Gabriel
7441 Paul Court
Riverdale, GA 30274
gabrieljgb@aol.com
Donnie Dixon, Business Agent
Local Union 728
2540 Lakewood Avenue,
SW Atlanta, GA 30315
Larry McDonald, Secretary-Treasurer
Local Union 728
2540 Lakewood Avenue, SW
Atlanta, GA 30315
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
hall1000@cox.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com