Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ELIGIBILITY OF                          )           Protest Decision 2016 ESD 255

            CARLOS GONZALES,                   )           Issued: June 21, 2016

                                                                        )           OES Case No. E-298-060716-FW

            Local Union 630.                               )                      

____________________________________)                                                         

            Frank Halstead, member Local Union 572, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Carlos Gonzales, an elected delegate of Local Union 630, is ineligible to serve in that position because his leave from employment under the local union’s jurisdiction has expired and he continues employment as a business agent for Local Union 1932. 

            Election Supervisor representatives Jo Pressler, Emily Fugitt, and Jeffrey Ellison investigated this protest.

Findings of Fact and Analysis

In Eligibility of Gonzales, 2016 ESD 154 (March 23, 2016), we held that Carlos Gonzales remained eligible to take his seat as an elected delegate to the IBT convention from Local Union 630 even though he had taken leave from Ventura Foods, an employer under the jurisdiction of Local Union 630, and commenced employment as a business agent for Local Union 1932.  We wrote the following:

[W]e find Gonzales was eligible for nomination as delegate.  We further find that he is presently on leave with recall rights to Ventura Foods, an employer under the jurisdiction of Local Union 630 and has paid full dues to the local union.  Accordingly, on the present record, we find no basis to conclude that Gonzales has forfeited his delegate seat, is no longer a member or “has left Local Union 630,” as the protest asserts.

Halstead renewed his protest on June 7, 2016, asserting that Gonzales’s leave with Ventura Foods had expired, that he had not returned to employment there, and that he has a permanent position on staff with Local Union 1932.  According to the protest, “[h]e is therefore no longer a member of Local 630” and should be disqualified from his delegate seat.  After investigation of this renewed protest, we conclude that Gonzales’s status as a member in good standing of Local Union 630 is unchanged and, applying the Rules and the IBT Constitution, he is still eligible to receive a credential as a delegate for Local Union 630. 

We previously found that on February 25, 2016, Gonzales made written request to Ventura Foods for a non-medical leave of absence pursuant to Article 27.1 of the collective bargaining agreement.  He requested that leave commence March 7 and conclude June 6, 2016, a total of 91 days.  Gonzales told our investigator he made the request in order to serve on a temporary basis as business agent for Local Union 1932, a statewide local union in San Bernardino County.  The employer granted the request, and Gonzales took leave from his position with Ventura Foods while retaining a contractual right to resume employment there.

On March 10, 2016, after the requested leave from Ventura Foods had commenced, Gonzales made direct payment of three months of dues to Local Union 630, giving him a paid through date of May 2016.  As of the date the protest was filed, Gonzales’s paid-through date with Local Union 630 remained at May 2016.

The leave expired without Gonzales returning to employment at Ventura Foods.  On June 8. 2016, the day after this protest was filed, we received an email communication from the attorney for Local Union 630 reporting that:

As a result of the claims made by protester Halstead, I did my own investigation into the facts relating to the current membership status of Brother Gonzales. I discovered the following:

1. Brother Gonzales was working at Ventura Foods when he was hired by Teamsters Local 1932 in approximately March of 2016.

2. Brother Gonzales was and continues to be a temporary probationary business representative as he was hired on a six (6) month probation. Assuming he passes his probationary period, he will be eligible to join Local 1932 in September, 2016.

3. Brother Gonzales has not transferred his membership from Local 630 to Local 1932.

4. Local 1932 has not requested that Brother Gonzales transfer his membership to Local 1932.

5. Brother Gonzales has paid his dues and is a member in good standing of Local 630 through June, 2016.

6. Brother Gonzales’ Leave of Absence from Ventura Foods did expire on June 6, 2016, and he resigned his position from Ventura Foods effective that date. However, if the temporary probationary position with Local 1932 does not work out, he will still be a member of Local 630 and he will, in all likelihood, seek employment within the jurisdiction of Local 630.

Local Union 1932 was formerly an independent labor union, the San Bernardino Public Employees Association (SBPEA).  It affiliated with the IBT in March 2015, and the IBT issued it a charter the next month.  Eligibility of Torres, 2016 ESD 214 (reissued) (May 23, 2016).  The local union provided our investigator with by-laws of the local union.  The document cover page states that the by-laws were “amended june 1, 2016.”[1]  The cover page also states that Ron Dunn is the president of the local union and Randy Korgan is its “General Manager.”  Article VIII, Section 1 of the by-laws grants the General Manager authority to “appoint and remove, employ and discharge, and prescribe the duties of all business agents, employees and clerks of the Local Union in accordance with written Board policy and/or Staff Memorandum of Understanding.”  Section 2 of the same article is titled “Business Agents.”  It reads as follows:

The term “Business Agents” in these Bylaws shall refer to all field staff.  Business Agents shall be appointed and may be removed at will only by the General Manager, subject to the provisions of any employment contracts or collective bargaining agreements.  The General Manager will cause to be performed at least one (1) annual written evaluation of each Business Agent.

No collective bargaining agreement or employment contract covers Gonzales’s position as a business agent.  Accordingly, under the by-laws and California law, Gonzalez is an at-will employee of Local Union 1932.

            The IBT constitution, Article XVIII, Section 1, requires every member “to establish or maintain membership in the Local Union under whose jurisdiction he is working, subject to . . . Section 5 of this Article.”  The section continues:

If a member continues to work under the jurisdiction of a Local Union of which he is not a member after having failed to apply for a transfer card as specified herein or after refusing to comply with an award transferring his membership, either the Local Union of which he is a member or to which he should transfer may bring charges for violation of this Constitution under Article XIX.  Refusal to issue a transfer card or to approve a transfer may be appealed to the General President and thereafter to the General Executive Board in accordance with the appeal procedures provided for in this Constitution, excluding, however, appeal to the Convention.

Section 2(a) of Article XVIII grants any member in good standing the right to obtain a transfer card from the local union of which he is a member “in order to become a member of the Local Union within whose jurisdiction he is employed.”  The local union into which the member is transferring must certify to the local union where the membership is held that the member “has obtained work … within that Local Union’s jurisdiction.” 

Article XVIII, Section 5 of the IBT constitution addresses situations where a member obtains employment within the jurisdiction of one local union while also working under the jurisdiction of another.  It provides the following:

When a member of a Local Union continues to work on a full-time basis within its jurisdiction and also obtains employment within the jurisdiction of a sister Local Union, he shall not be entitled nor required to transfer his membership, but he shall pay to the sister Local Union a periodic service fee (not in excess of the applicable membership dues) established and uniformly required by it from members of other Local Unions working within its jurisdiction.  

Investigation showed that during the period Gonzales has been employed as a business representative for Local Union 1932, he has paid the service fee identified in the foregoing constitutional provision.

            We inquired with Local Union 630 concerning the application of these constitutional provisions to Gonzales’s employment as a business representative for Local Union 1932.  Counsel for the union indicated that his earlier statement that Gonzalez had resigned from Ventura Foods was incorrect:  “I am now informed he may have filed a grievance over the Company’s refusal to extend his Leave of Absence beyond June 6.”  Subsequent investigation showed that Gonzales filed a grievance with Ventura Foods on June 9, two days after the protest here was filed, which read as follows:

I was granted a one year leave and one day prior to my leave I was told I can only take three months under the CBA.  April [Blackmoore, Ventura Foods plant manager] then told me to return prior to my leave and she would grant me an additional three months.  Upon my return I was denied leave.

The grievance requested an additional three months of leave.

            Counsel for Local Union 630 further informed us that Gonzales had contacted Ventura Foods’s HR department and “was told if he reported for work at least a day before his leave expired, he would be granted an additional leave of three (3) months.”  Both counsel’s statement and the grievance Gonzales filed suggest without stating expressly that Gonzales returned to work for “at least a day” before the leave expired.  In contrast, Gonzales told our investigator that Ventura Foods must have assumed he had resigned his employment when he did not show up for work.

            Article III, Section 6 of the IBT constitution requires each delegate to the convention to “present evidence establishing that he is a member in good standing and entitled to a seat in the Convention.”  The protestor’s contention is that Gonzales ceased to be a member in good standing of Local Union 630 when he did not return to work at Ventura Foods upon expiration of his leave of absence, and without membership in good standing, Gonzales is ineligible to claim his seat as a delegate.

            We conclude that Gonzales has been a member in good standing of Local Union 630 while employed by Ventura Foods and that status continues during his approved leave and pending grievance.[2]  Gonzales obtained full-time work under the jurisdiction of a “sister Local Union” when he began serving as a business agent for Local Union 1932, and that triggered his obligation under Article XVIII, Section 5 of the IBT constitution to pay service fees to that local union while paying dues to Local Union 630. 

The pending grievance demonstrates that Gonzales seeks to retain a right of re-employment with Ventura Foods and has not abandoned work within the jurisdiction of Local Union 630, as an express resignation from employment would suggest.  We conclude that the pending grievance seeking continuation of his leave of absence weighs in his favor on his claim that he remains a member in good standing of Local Union 630.

The constitutional transfer provisions require actions from three parties.  First, the member must initiate the transfer request; second, the local union who will receive the member must certify that he has obtained employment under its jurisdiction; and third, the local union from which membership will transfer must respond in writing as to the member’s membership status.  No party here has taken the actions specified by the constitution.  Gonzales has not because he seeks to retain his membership with Local Union 630, which gives him reversion rights to Ventura Foods, protection in the event his employment with Local Union 1932 ends.  Local Union 1932 has not because it has not been presented with a transfer request.  Local Union 630 has not because Gonzales has a pending grievance with an employer under its jurisdiction.

            On the present record, we conclude that Gonzales retains membership in good standing with Local Union 630 and is not presently obligated to initiate transfer of his membership from Local Union 630 to Local Union 1932.  Gonzales therefore may be seated as a delegate from Local Union 630.

Accordingly, we DENY the protest.[3] 

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 255 

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