Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: PATRICK KELLY,                         )           Protest Decision 2020 ESD 13

                                                                        )           Issued: August 25, 2020

Protestor.                                           )           OES Case No. P-019-081320-FW

____________________________________)

Patrick Kelly, member of Local Union 952, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”).  The protest alleged that Local Union 952 has delayed accepting or refused to accept the protestor’s dues payments so as to interrupt his continuous good standing and deprive him of eligibility for nomination in the local union’s delegate and alternate election.

Election Supervisor representative Michael Miller  investigated this protest.

Findings of Fact

Protestor Kelly served as principal officer of Local Union 952 beginning in January 1999.  He lost a bid for re-election to that position in Fall 2019.  The newly elected officers assumed office on January 1, 2020. 

Some seven years ago, at a time when Kelly was employed on full-time salary with Local Union 952, he also began drawing his pension, which he continues to receive.  In addition to his salary from the local union, Kelly qualified for vacation time in accordance with local union policies.  At the time his term ended on December 31, 2019, 61.42 days remained in Kelly’s vacation bank.  The new administration paid this accumulated vacation allotment in a lump sum on January 3, 2020. 

Kelly seeks to preserve his eligibility to run for Local Union 952 delegate to the IBT convention.  That election will be held in winter 2021.  While in office with and drawing a salary from the local union, Kelly paid his monthly dues by check-off authorization.  With the end of his term, Kelly began to pay his dues directly to the local union, either by cash or check.  Under Article X, Section 5(c) of the IBT Constitution, a member paying dues directly to the local union must do so no later than the last business day of the month in which they are due, or the dues are untimely and the member is not in good standing for that month.  If the member fails to be in continuous good standing for the 24 consecutive months preceding the month in which a nominations meeting is held, the member is not eligible for nomination.

In December 2019, Kelly tendered three months’ dues to the local union in advance, paying his dues through March 2020.  When the local union acting under the direction of the new officers paid the vacation allotment in January 2020, a dues deduction of one-half month’s obligation was made from the payment, which had the effect of paying Kelly’s dues for half of April 2020.  Thereafter, Kelly made an additional dues payment equal to one and one-half month’s dues to the local union in April 2020 that paid him through May 2020.  He made this payment by going to the local union hall and handing his dues directly to a local union employee responsible for accepting dues payments.

On Friday, June 26, 2020, Kelly again went to the local union office dues window to pay his June dues. Office Administrative Assistant Kristin Detrick-Lugo met him at the window and told him she could not accept his payment, saying “you have to talk with Eric,” referring to principal officer Eric Jimenez.  Kelly asked to see Jimenez and was told he was unavailable.  Detrick-Lugo did not issue Kelly an honorable withdrawal card.

Suspecting an improper effort to interrupt his continuous good standing, and knowing that he faced a June 30, 2020 deadline for timely payment of June dues, Kelly returned to the local union office the next day, Saturday, June 27, and inserted a dues payment envelope with his personal check in the full amount of his monthly dues into the union’s drop slot. The union office was closed that day, as was customary for a Saturday.  According to Kelly, dues payers have been using the local union drop slot as a convenience for paying dues for many years, and Kelly believed he was protected in paying his dues by that method here, despite the staff’s refusal to accept his in-person payment on the June 26.  Nonetheless, to protect himself from any claim that the payment was untimely made, Kelly used his cell phone camera to record his deposit of the dues envelope into the drop slot on June 27.  He supplied the video to our investigator.  The 40-second video depicted an envelope hand-addressed to Teamsters Local 952 dues department, bearing a sticker return address for Patrick Kelly, deposited into a mail slot mounted in the stucco wall less than a foot above the concrete sidewalk and immediately beneath a large plate-glass window at 140 S. Marks Way, Orange CA, the local union hall.  The video depicted a “Teamsters Union Local 952” sign with horses-and-wheel logo mounted on a pole in front of the building.  On the inside of the plate-glass window facing out, immediately above the slot, were two signs, one bearing the street address of the building, the other reading “Drop Box” with an arrow pointing down to the slot.  The video properties show that the video was recorded on June 27 at 11:56 a.m. PDT.

Kelly’s check was cashed July 8, some 11 days after he deposited it in the drop slot.  His dues payment record shows that the dues were applied to his account on July 8, recording his dues as paid through June 2020.  He subsequently received a printed receipt from the local union, stating that the dues were received on July 8.      

Patti Moser, office manager, told our investigator that, for reasons related to the COVID-19 pandemic, the local union office closed to in-person work at about 2 p.m. PDT on Friday, June 26.  Employees were sent home until July 8 so the office could undergo sanitizing.  Moser said that she came into the office alone at various times during the shutdown but did not attend to the items placed in the drop slot.  When the office resumed in-person work on July 8, Moser said she collected the items in the drop slot, which included Kelly’s envelope, and recorded his dues as paid that day, July 8.  She said she had no way to determine the precise date the payment had been made, so it was recorded as having been made on July 8.  A receipt was prepared and mailed the same day reflecting this decision, and Kelly’s check was deposited in the local union’s bank account on July 8 as well.  The envelope the local union used to send the receipt to Kelly contained only the receipt; it did not include an honorable withdrawal card.

Kelly told our investigator that, on Wednesday, July 29, he again went to the local union office, this time to pay his July and August dues. He was met at the dues payment window by office manager Moser, who declined to accept his payment, telling him, “you have to talk to Eric.”  When Kelly asked to speak with Jimenez, Moser told him he was unavailable.  Moser did not issue Kelly an honorable withdrawal card. 

In Moser’s recounting, Kelly came to the hall requesting to pay his dues.  She said she told him she could not accept them and that he had to speak with Jimenez first.  According to Moser, Kelly insisted that she accept his dues, stating he did not want any disruption in his unemployment compensation.  Moser also recalled Kelly asking her whether Jimenez intended to put him on withdrawal status, emphasizing that he did not want that.  Moser said she replied that, for the present, Kelly would not be placed on withdrawal but that he needed to speak with Jimenez. 

Moser said she phoned Jimenez, who was not in the office, to tell him that Kelly was in the office insisting on paying his dues.  Jimenez told our investigator that after receiving the call from Moser he phoned Joe Kaplon, attorney for the local union, who told him that since six months had passed from the month Kelly left office, and since Kelly admitted that he was not being paid for any work under the local union’s jurisdiction[1], he was not eligible to continue to pay dues and instead should be issued a withdrawal card. Jimenez did not direct Moser to issue a withdrawal card to Kelly, and none was issued.  Instead, Jimenez told her to tell Kelly simply that the local union would not accept any further dues payments from him. 

Unable to pay his dues in person, Kelly responded by preparing a letter to the local union detailing Moser’s refusal to accept the payment and enclosing a check for July and August dues.  The letter stated that the local union’s treatment of him “is political retaliation & violates my rights.  Enclosed is a check … for July & August dues.”  On the morning of July 31, he went to a UPS Store in Costa Mesa CA and sent the letter and his check by UPS overnight service to the union hall.  He followed that action with a phone call to Jimenez’s cell phone at 11:54 a.m. PDT which went unanswered.  Kelly next sent a text message to Jimenez at 1:24 p.m. PDT that day.  The text read: “Hi Eric: Patty [Moser] would not take my July and August dues and said I had to talk to you.  I sent them UPS.  Also pension contributions were not made on my vacation.  That needs to be taken care of asap so the Local does not get banged for late payments.  Thanks, Patrick.”  Kelly received no text reply to this message.  He followed the text promptly with another phone call attempt.  This time Jimenez answered.  Kelly told our investigator that during this call he told Jimenez he had tried to pay dues on time but was twice rebuffed in June and July by Local Union 952 staff who said they were acting at Jimenez’s direction.  Kelly said he also complained that the local union had not paid the $2,000 per month pension share for his vacation pay for the three months covering his vacation cash pay-out.  Jimenez said only that he would “look into” the latter $6,000 liability.  Jimenez told our investigator that he affirmed to Kelly that the local union would not accept any further dues payments from him because he was not working.  Kelly argued in response that he was working on an unpaid basis with the IBT’s organizing department, attempting to organize ready mix drivers in the Los Angeles area. 

Kelly told our investigator that he has been working as an unpaid volunteer organizer for IBT, under the supervision of Western Regional Organizing Coordinator Manny Valenzuela.  Kelly said that nearly daily over the past several months, Kelly has been working on organizing large cement trucking companies in southern California.  He has coordinated regular, almost daily, Zoom meetings and conference calls with IBT organizing staff, and training sessions followed by debriefing meetings on organizing strategy and progress.  Kelly said that because of cutbacks and staff shortage levels associated with the pandemic, Valenzuela told him months ago that he was not currently authorized to hire Kelly for pay, but that he should be able to come on board eventually when shutdowns declined and things got back to normal.  Kelly has continued to volunteer, with the understanding that the IBT would eventually hire him.  The organizing drives, if successful, would produce many new members for Local Union 952. 

Valenzuela corroborated Kelly’s evidence about his organizing work.  Valenzuela, Western Regional Organizing Coordinator since 2001, confirmed Kelly’s almost daily work as an unpaid organizer for the union, focused on cement trucking campaigns.  Valenzuela said Kelly is working on his seven-man team, which consists of five paid and two unpaid organizers, and participates in almost daily Zoom calls and on-site visits to conduct training and briefing sessions.  Valenzuela said he planned to “pick up” Kelly for paid employment once he had authorization to do so.  He has found Kelly’s knowledge and expertise gained as a local union principal officer in Southern California particularly valuable in the organizing effort. 

Kelly asked Jimenez to accept his volunteer organizing work as work under the jurisdiction of the local union, noting that if the organizing effort succeeded, it would produce new members for Local Union 952.  Kelly stated that from Jimenez’s tone, he understood that the union, at Jimenez’s direction, was trying to force Kelly to request a withdrawal card.  Kelly addressed this point explicitly during call, telling Jimenez that “I’m still looking for work.”  According to Kelly, Jimenez did not respond to Kelly’s complaint about the refusal by local union staff to accept his dues payments, even after Kelly told Jimenez that Kelly wanted to ensure there was “no disruption” in Kelly’s dues payment history.  According to Kelly, the phone conversation with Jimenez was strained and unproductive.

Delivery of the UPS envelope containing Kelly’s dues payment for July and August was attempted on Monday, August 3, at 10:01 a.m. PDT.  Delivery was refused by local union staff.  The UPS tracking history for the shipment states: “The receiver does not want the product and refused the delivery.”  The envelope was returned to originating UPS Store the next day, August 4, where Kelly retrieved it.

After the protest was filed and investigative interviews completed, Kelly made a further attempt to pay the July and August dues the local union previously had rejected.  On August 19, Kelly, accompanied by retiree Chris Muller, went to the local union hall.  Kelly stated that Detrick-Lugo let them into the office, and he told her he was there to pay the dues.  She replied that she had to get Jimenez.  About fifteen minutes later, Jimenez appeared; he brought with him local union president John Green, vice-president Danny Herbert, and a member employed as a warehouseman at Albertson’s, James Placentia.  The assembly met in the local union’s foyer.  Kelly presented Jimenez his check for two months’ dues.  Jimenez refused the check, stating he was doing so “on the advice of counsel.”  Kelly stated that under the IBT constitution and local union bylaws, unemployed members may remain in good standing by paying their dues, looking for work under the jurisdiction of the local union, and not working outside the craft.  Kelly told Jimenez again that he was volunteering on an IBT organizing campaign, had not yet been hired, expected that he would have been hired but for the COVID-19 pandemic, and therefore should be treated as a member working under the jurisdiction of the local union.  Jimenez replied that even if Kelly obtained employment with the joint council or the IBT, such work would not be under the jurisdiction of Local Union 952.  Kelly told Jimenez that his understanding in this regard was mistaken.  Kelly further stated that in the 29 years he had worked for the local union, there was no history of members being forced out on withdrawal.

On July 17, 2020, a month before the foyer meeting, Kelly Osteen, bookkeeper for Local Union 952, faxed a Verification of Employment and Earnings she had completed on Kelly to Pat Cole at the IBT’s Teamster Affiliates Pension Plan (TAPP).  The form listed Kelly’s “[l]ast day actually worked” as “12/31/2019.”  It also stated that 61.42 days of vacation pay were paid to Kelly in a lump sum in January 2020.  The form was signed by Jimenez and Green for the local union.  Cole, the TAPP official, noted next to the 12/31/2019 date the form indicated as Kelly’s last day actually worked the following: “Adj. to 3/25/20 w/ vacation pay;” she signed it “P. Cole.” 

Through the date this decision issued, the local union has not issued an honorable withdrawal card to Kelly.

Analysis

            Kelly seeks to maintain his eligibility to be nominated in Local Union 952’s delegates and alternate delegates election.  The nominations meeting has not been scheduled but likely will occur in January or February 2021. 

To be eligible for nomination, a member must be in continuous good standing, with his dues paid timely to the local union for 24 consecutive months prior to the month of nomination, with no interruptions due to suspensions, expulsions, withdrawals, transfers or failure to pay fines or assessments.  The member must also be employed at the craft within the jurisdiction of the local union for 24 consecutive months prior to the month of nomination.  IBT Constitution, Article II, Section 4(a)(1); Rules, Article VI, Section 1(a).  As applied to Local Union 952, the 24-month eligibility period will be January 2019 through December 2020 if the nominations meeting is held in January 2021; it will be February 2019 through January 2021 if the meeting is held in February 2021.

Local unions have jurisdiction to issue honorable withdrawal cards in the circumstances described in Article XVIII, Section 6 of the IBT Constitution.  Issuance of a withdrawal card operates to excuse the obligation to pay dues of a member who becomes unemployed within the jurisdiction of the local union, but withdrawal status interrupts the 24-month continuous good standing requirement that is a prerequisite to nomination for office.[2] 

When a member becomes unemployed, a local union shall issue an honorable withdrawal card on the member’s request.  If the member does not request withdrawal – and Kelly here has not requested it – the local union nonetheless is required to issue the card “six (6) months after the month in which the member first becomes unemployed, if he is still unemployed at that time.”  Const., Article XVIII, Section 6(a).  Mangan, E111 (March 11, 1996).

Section 6(b) of Article XVIII states that “[a] withdrawal card shall be issued to any member, including a Local Union officer, who has retired, except that a member who continues to work at the craft, including employment with the International Union, or any affiliate, shall be required to retain active membership.”

The Rules, at Article VI, Section 2(a), provide that the “active employment at the craft requirement may be excused by unemployment if, for the period of unemployment, the member was actively seeking and available for employment in the craft and not working outside the craft during such period of unemployment …”[3]

Although Local Union 952 has not issued an honorable withdrawal card to Kelly, it offers three bases for asserting that it cannot accept his dues payments because he is otherwise required to be on withdrawal status. 

First, the local union, through its counsel Kaplon, asserts that Kelly was “retired” as that term is used in Article XVIII, Section 6(b) of the Constitution – a withdrawal card “shall be issued to any member, including a Local Union officer, who has retired” – requiring the local union to treat Kelly as on withdrawal.  Kaplon points to two facts as proof of retirement, that Kelly last worked in December 2019 and that he is receiving a pension.  This argument is unpersuasive because it confuses receipt of pension with retirement.  The two are distinct.  While retirees who are eligible for pensions receive them, it does not follow that pension recipients are retired within the meaning of the rule.  Indeed, Kelly has been receiving his pension for the past seven years, all but the last several months of which he worked on full-time salary as principal officer of Local Union 952.  Kaplon’s argument also fails to account for the principle, stated repeatedly in our decisions over the past thirty years, that receipt of a pension does not automatically disqualify a member from running for delegate or alternate delegate.  Bedell & Musso, 91 Elec.App. 37 (April 25, 1991); Henderson, E-119-LU463-EOH (February 27, 1996); Evans, 2006 ESD 87 (February 22, 2006), remanded on other grounds, 06 EAM 13 (March 6, 2006), dismissed as moot, 2006 ESD 165 (March 27, 2006); Eligibility of Moreno, Flores, and Hernandez, 2016 ESD 124 (February 27, 2016), aff’d, 2016 EAM 12 (March 4, 2016) (same).  Rather, the member retains membership in good standing if he is actively seeking employment under the local union’s jurisdiction and does not work outside the craft during the period of unemployment, regardless of his contemporaneous receipt of pension benefits, and his record must be examined to see if he fails to satisfy some other criterion of eligibility required by the Rules.  Henderson, supra.

Further supporting our conclusion that a pension recipient is not conclusively considered “retired” within the meaning of Article XVIII, Section 6(b) of the IBT Constitution is the amendment history of that provision.  In 1986, the IBT Convention amended the section to include the following sentence: “A member, including a Local Union officer, who is receiving pension benefits from any pension plan shall be considered to have retired.”  This provision was removed by subsequent amendment of the IBT Convention, extinguishing the explicit connection between receipt of pension and “retired” in that provision.  Were that amendment removing the definition of “retired” not made, Kelly would have been considered retired seven years ago, when he first began receiving his pension.

The local union’s second argument, first posited by Jimenez in the foyer meeting on August 19, is that even if Kelly had become employed on a paid basis by the IBT or the joint council as an organizer, such work would not be under the jurisdiction of the local union because it was not work directly for the local union or for an employer under contract with the local union.  This argument is contradicted by Article II, Section 4(e) of the IBT Constitution, which states as follows:

All officers and employees of the International Union and of any affiliate … shall be considered as meeting the requirement of working at the craft within the jurisdiction for the purpose of retaining active membership and to be eligible for election to office in a Local Union in which he is a member or the International Union or any subordinate body or as a delegate to International Conventions.

For this reason, Jimenez was incorrect by stating in the foyer meeting that, even were Kelly hired as an organizer by the IBT or an affiliate, the work would not qualify as “working at the craft” under the Constitution.

            The local union’s final argument relies on the constitutional provision requiring a local union to issue a withdrawal card to a member “six (6) months after the month in which the member first becomes unemployed, if he is still unemployed at that time.”  Const., Article XVIII, Section 6(a).  It contends that Kelly’s paid employment ended in December 2019.  With the passage of six months since then without paid employment (January through June), the local union argues that Kelly must be placed on withdrawal status as of July 2020.

            We reject the local union’s argument for two reasons.  First, Kelly’s paid employment continued in the form of vacation pay through March 2020.  It makes no difference that the local union paid the vacation entitlement as a lump sum in January rather than in bi-weekly installments through March.  The entitlement is measured in vacation days, and those days have the effect of adjusting Kelly’s last day of employment to March 25, 2020, as found by the determination of the TAPP official tasked with verifying Kelly’s employment and earnings.  We find that a member is not unemployed within the meaning of the constitutional provision if he is on paid vacation, which Kelly was during the months of January, February, and March.  For this reason, the first month of unemployment that followed his employment with Local Union 952 was April 2020.

            In reaching this conclusion, we reject the local union’s supplementary argument that the constitutional end to Kelly’s term of office in December 2019 dictated the start of his period of unemployment.  Kelly no longer had authority to act as local union principal officer commencing January 1, 2020, but that lack of authority is distinct from his right to receive compensation from the local union in the form of paid vacation that is attributed to his service as principal officer.

            Under the constitutional mandatory withdrawal provision as applied to the facts presented here, Local Union 952’s obligation to issue a withdrawal card and cease accepting Kelly’s dues cannot occur until October 2020, at the earliest, provided that Kelly is unemployed at that time and has had no interim employment at the craft.  Therefore, the local union’s refusal to accept his dues in June violated Article VI, Section 2(a) of the Rules, which adopts by reference the provisions of the IBT Constitution that concern honorable withdrawal cards.  The local union’s refusal on three occasions – July 27 in person, August 3 via UPS, and August 19 in person – to accept Kelly’s dues for July and August violated the Rules for the same reason.

            The second basis for rejecting the local union’s argument is that it has not issued Kelly a withdrawal card.  Rather, it has simply refused to accept his dues.  The IBT Constitution does not permit a local union to refuse dues from a member otherwise in good standing without issuing him a withdrawal card.  The issuance of a withdrawal card carries with it appeal rights for the member, should he/she contest it[4], and the local union has attempted to circumvent such an appeal simply by refusing the dues without issuing the withdrawal card.  The effect of the local union’s strategy is to attempt to create a break in Kelly’s continuous good standing because of untimely payment of dues (the June payment, first refused outright but then accepted and recorded as made untimely on July 8) or non-payment of dues (the refused July and August payments), instead of or in addition to its claim that Kelly has failed to work at the craft by being unemployed for more than six months.

            We need not decide whether Kelly’s unpaid work on IBT organizing campaigns constitutes “working at the craft” within the meaning of the Rules and the IBT Constitution because resolution of that issue is not necessary to our holding that the local union otherwise had no authority to reject Kelly’s timely payment of dues.

            For the foregoing reasons, we GRANT the protest.

Remedy

When the Election Supervisor determines that the Rules have been violated, he “may take whatever remedial action is deemed appropriate.”  Article XIII, Section 4.  In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.  “The Election Supervisor’s discretion in fashioning an appropriate remedy is broad and is entitled to deference.”  Hailstone & Martinez, 10 EAM 7 (September 14, 2010).

1. We order Local Union 952 to cease and desist from refusing to accept Kelly’s dues payments unless and until the local union becomes required by Article XVIII, Section 6(a) of the IBT Constitution to issue an honorable withdrawal card to him.  The earliest month in which the local union is permitted to issue such a card to Kelly is October 2020, the month which follows the elapsing of six full months after March 2020, the month which included Kelly’s adjusted last date of paid employment with the local union.  An honorable withdrawal card may be issued to Kelly at such time only if he remains unemployed at the time of issuance and has had no interim employment in the craft.  Kelly may challenge the issuance of a withdrawal card, should it occur, through the IBT Constitutional procedure and/or through the Rules’ protest procedure and may present his argument that volunteer work for the IBT constitutes work at the craft, should circumstances at that time warrant such an argument.
2. We order Local Union 952 to accept and record to Kelly’s TITAN record his payment of dues for July and August 2020, provided he remits them no later than August 31, 2020.
3. We order Local Union 952 to accept and record to Kelly’s TITAN record his payment of dues for September 2020, should he remit them, on the date of remittance.
4. We order Local Union 952 to place in the Remarks section of Kelly’s TITAN record the following statement: “By order of the Election Supervisor in Kelly, 2020 ESD 13 (August 25, 2020), dues for June 2020 are deemed received June 26, 2020, and dues for July and August 2020 are deemed received July 27, 2020.”

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.  Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i).  All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor.  Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:

Barbara Jones

Election Appeals Master

IBTappealsmaster@bracewell.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, all within the time prescribed above.  Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision.  A copy of the protest must accompany the request for hearing.

                                                                  Richard W. Mark

                                                                  Election Supervisor

cc:        Barbara Jones

            2020 ESD 13

DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):

Bradley T. Raymond, General Counsel

International Brotherhood of Teamsters

braymond@teamster.org

Edward Gleason

egleason@gleasonlawdc.com

Patrick Szymanski

szymanskip@me.com

Will Bloom

wbloom@dsgchicago.com

Tom Geoghegan

tgeoghegan@dsgchicago.com

Rob Colone

rmcolone@hotmail.com

Barbara Harvey

blmharvey@sbcglobal.net

Kevin Moore

Mooregp2021@gmail.com

F.C. “Chris” Silvera

fitzverity@aol.com

Fred Zuckerman

fredzuckerman@aol.com

Ken Paff

Teamsters for a Democratic Union

ken@tdu.org

Robert Kelly

Pdk952@aol.com

Teamsters Local Union 952

Team952@aol.com

Joe Kaplon

jkaplon@wkclegal.com

Elizabeth Rosenfeld

erosenfeld@wkclegal.com

Amanda Lively

alively@wkclegal.com

Michael Miller

miller.michael.j@verizon.net

Deborah Schaaf

dschaaf@ibtvote.org

Jeffrey Ellison

EllisonEsq@gmail.com