ELECTION APPEALS MASTER X IN RE: MARIO FLORES, DECISION RE 2016 ESD 146

Transcription

1 ELECTION APPEALS MASTER X IN RE: MARIO FLORES, Protestor, EAM 13 (KAR) DECISION RE 2016 ESD X Protest Decision 2016 ESD 146 (ESD 146), which addresses a protest filed by Mario Flores, a member of Local Union 439 and candidate for delegate, was issued on March 15, (OES Case No. P FW). The protest alleged that Local Union 439 and its principal officer, Ken Guertin, retaliated against Mr. Flores for activity protected by the Rules. In Eligibility of Moreno, 2016 ESD 124 (February 27, 2016), aff d, 16 EAM 12 (March 4, 2016), the Election Supervisor held Mr. Flores eligible for nomination as delegate in Local Union 439 s delegates and alternate delegates election, finding that he satisfied the work at the craft eligibility criterion, the only basis cited in the challenges to his eligibility. On February 29, 2016, the protestors challenging the eligibility of Mr. Flores, including Ken Guertin, the secretary-treasurer and principal officer of Local Union 439 (and himself a candidate for delegate), filed an appeal of ESD 124, changing the basis of their challenges, and contending for the first time that Mr. Flores had failed, commencing in or about February 2015, to pay any dues or to pay the proper rate of dues and therefore was ineligible for nomination. Following a telephonic hearing, I denied the appeal and sustained the Election Supervisor s decision EAM 12 (March 4, 2016). In support of the appeal of ESD 124, Mr. Guertin, presented a TITAN printout generated on February 29, 2016, that showed a retroactive adjustment to Mr. Flores s dues record made that same day. The adjustment altered the dues rate of $15 per month that the local union had been charging Mr. Flores, retroactively increasing it to $72 per month effective February The rate was further increased to $73 per month, effective July The effect of this retroactive adjustment was to change Mr. Flores s paid through date from July 2016 to April 2015 and to leave him in arrears in the amount of $732. The day after this retroactive adjustment to Flores s dues record, the local union sent Mr. Flores a letter directing him to pay the arrearage by March 14, 2016 or face suspension from membership. Mr. Flores filed a protest alleging that the retroactive dues increase constituted prohibited retaliation for his delegate candidacy, as activity protected by the Rules. The Election Supervisor granted the protest, and Mr. Guertin filed an appeal on March 17, Mr. Guertin also sought a stay of the remedy imposed by the Election Supervisor. I denied the application for a stay on March 18,

2 Decision of the Election Supervisor Mr. Guertin provided the following justification for the retroactive dues increase to the Election Supervisor: Mr. Guertin told the Election Supervisor that he learned for the first time when reviewing ESD 124 (issued on February 27, 2016) that Mr. Flores had attended training at the Northern California Teamsters Apprentice Training and Education Fund (NCTAT) in February Mr. Guertin or a local union staff member contacted NCTAT on February 29, 2016, and confirmed that Mr. Flores attended Truck Mounted Crane/Knuckle Boom training commencing Monday, February 9, 2015 and concluding Friday, February 20, Mr. Guertin stated that the local union TITAN operator told him that Flores s receipt of training from NCTAT had two consequences: first, the TITAN operator told Mr. Guertin that Mr. Flores was required to pay full construction dues ($72 per month) for the month in which training occurred; second, Flores was required to continue at the construction dues rate following the training, unless Flores notified the local union (which he did not) that he wished to return to the $15 rate for members registered on the Out Of Work Construction List (OOWCL). Mr. Guertin told the Election Supervisor that when he learned this information he instructed the TITAN operator to do what she would normally do in this circumstance. According to Mr. Guertin, the TITAN operator then made a retroactive adjustment to Mr. Flores s dues record to change his dues rate from $15 to $72 per month for February 2015, the month in which he received the training, and thereafter, given that Mr. Flores had not expressly requested to remain on the OOWCL following the training, to change his dues rate from $15 to $72 per month ($73 per month, beginning July 2015, owing to a dues increase) for each successive month through present. Before the change was made to Mr. Flores s dues record, he had a paid through date of July 2016, based on dues calculated at $15 per month because of his registration on the OOWCL. Following the retroactive adjustment to his dues record, Mr. Flores s TITAN showed a paid through date of April 2015, and an arrearage for the months of May 2015 through February 2016 of $732. Mr. Guertin asserted to the Election Supervisor that he did not understand how TITAN works or what the reasons were that justified the dues adjustment. He denied that the adjustment was made because of Mr. Flores s delegate candidacy. According to Mr. Guertin (as noted above, himself a delegate candidate), Mr. Flores s presence on the ballot helps Mr. Guertin s candidacy; he further claimed despite his previous protest seeking to disqualify Flores as ineligible for nomination that he did not wish to do anything to cause Mr. Flores to be removed from the ballot. Mr. Guertin directed Election Supervisor to Kimberly Powers, the TITAN operator involved, for a detailed explanation of why the dues adjustment was made. Ms. Powers told the Election Supervisor that members enrolled in training at NCTAT are required to pay the construction dues rate for the month(s) in which the training occurred. She stated that this requirement was found in Rule 9 of the Teamsters Local 439 Construction Hiring Hall Rules, which states in pertinent part: 2

3 All members shall pay a minimum of $15.00 fifteen dollars a month service charge, only for the time being as out of work. When dispatched to work the full dues rate shall be paid, whatever the rate is at the time. Ms. Powers explained that the phrase, [w]hen dispatched to work, included enrollment in training at the NCTAT, training being a circumstance in which the full dues rate shall be paid. She provided two examples of other members of Local Union 439 who paid the construction dues rate in months that corresponded with NCTAT training. Ms. Powers acknowledged that the construction referral rules as written do not require the higher rate. She stated that she tries to remember to tell members applying for training that they will be required to pay construction dues for the months in which the training takes place, but she could not state that she actually so notified all members who enrolled in training. When asked specifically whether she told Mr. Flores of the higher dues rate for the month in which he attended training, she stated she could not recall doing so. Ms. Powers further stated that Flores failed to report back to the local union following completion of his training that he had completed the training and wished to remain on the OOWCL. Nothing in the construction referral rules states that a member completing training must report the completed training to the local union and request to remain on the list. As with the construction dues rate during training, Ms. Powers stated that she could not recall telling Mr. Flores that he had an obligation to report to the local union after completing training and to request to remain on the OOWCL. Ms. Powers justified the retroactive increase of Mr. Flores s dues by citing two examples of members who were on withdrawal status and then returned to work under the local union s jurisdiction earning a union wage, yet the employer did not deduct and remit dues because the local union did not include the member s name on the pre-bill list for dues check-off. In both situations, Ms. Powers stated that, when the local union discovered the omission, the member was taken off withdrawal retroactive to the date he returned to work and was required to pay accrued dues from that date to the present. Ms. Powers stated that these examples justified the treatment accorded Mr. Flores, even though he was never on withdrawal status and did not return to work under Local Union 439 s jurisdiction earning a union wage. Rather, it was Mr. Flores s purported failure to request continuation on the OOWCL following completion of training, according to Ms. Powers, that dictated the continued obligation to pay construction dues after training was completed. Ms. Powers told our investigator that, per her practice at the local union, she could assess members retroactive dues, but a member such as Mr. Flores was not permitted to give retroactive notice to the local union that he wished to remain on the OOWCL at the OOWCL rate, even though actual events show that he was on the OOWCL for the entire period from his enrollment in or around December 2014 and continuing through present. Ms. Powers presented no example of a retroactive dues increase directly applicable to Mr. Flores s circumstances, i.e., imposed upon a member who completed training and then did not obtain employment under the local union s jurisdiction. Mr. Flores told the Election Supervisor that he applied for training at NCTAT in January 2015, by completing a written application and presenting it to Mr. Guertin for his signature on January 20. In addition, Mr. Flores obtained a TITAN printout on January 20, 2015, that showed 3

4 his dues were current as of that date. Mr. Flores presented these and other materials to NCTAT and was accepted for the Truck Mounted Crane/Knuckle Boom training class in February Mr. Flores stated that neither Mr. Guertin nor Ms. Powers (nor anyone else at Local Union 439) told him that he was required to pay the construction dues rate while enrolled in training. Further, Mr. Flores stated that no one neither Mr. Guertin, nor Ms. Powers, nor anyone else told him that he was required to report back to the local union following training to request that he remain on the OOWCL, and that if he failed to do so, he would be required to pay construction dues on an ongoing basis even though he was not earning a construction wage. Based upon the above facts, the Election Supervisor found that there is no written policy, procedure or rule that requires a member of Local Union 439 who is out of work, registered on the OOWCL and paying the OOWCL dues rate, to pay the construction dues rate while enrolled in a training class at NCTAT. The Election Supervisor further found that there is no written policy, procedure, or rule that requires the member who has completed NCTAT training to notify the local union that the training has been completed and request to remain on the OOWCL. In addition the Election Supervisor found that there is no written policy, procedure or rule that imposes an obligation on a member who is registered on the OOWCL and undergoes training at NCTAT to pay the construction dues rate on an ongoing basis following training unless he requests to remain on the OOWCL. With respect to the examples provided by Ms. Powers, the Election Supervisor found that the practice she imposed of assessing construction dues for members enrolled in NCTAT training is not authorized by the IBT constitution, Local Union 439 bylaws, or any written policy, procedure or rule. The Election Supervisor therefore found that the imposition of a retroactive dues increase on Mr. Flores was without authority under any governing document. The Election Supervisor found that the imposition of the retroactive dues increase by Local Union 439 upon Mr. Flores constituted retaliation for activity protected by the Rules in violation of Article VII, Section 12(g). The Election Supervisor noted that the retroactive assessment was done at the behest of Mr. Guertin, the principal officer of the local union, and was undertaken in the context of an appeal of a protest decision by which Mr. Guertin sought to strike Mr. Flores s name from the ballot in the delegates and alternate delegates election. These facts compelled the Election Supervisor s conclusion that Mr. Guertin s action was undertaken because of Mr. Flores s delegate candidacy, and therefore violated the Rules as prohibited retaliation. Specifically, the Election Supervisor rejected as incredible Mr. Guertin s claim that he did not know that Flores was attending training at NCTAT, in light of the fact that Mr. Guertin signed Mr. Flores s training application. The Election Supervisor further found incredible Mr. Guertin s claim that he took a hands off approach with respect to the retroactive adjustment of Mr. Flores s dues rate, and merely instructed Ms. Powers to do what she would normally do, based upon Mr. Guertin s status as a candidate adverse to Mr. Flores, with a personal interest in attempting to block Mr. Flores s candidacy. The Election Supervisor ordered Local Union 439 and Mr. Guertin to cease and desist from retaliating against Mr. Flores and any other member for activity protected by the Rules. In addition, the Election Supervisor ordered Local Union 439 to take the following action: 4

5 Rescind the retroactive dues increase imposed on Mr. Flores; Deliver a letter to Mr. Flores rescinding the retroactive dues imposed in the letter dated March 1, 2016 and revoking the request for payment of $732 set forth in that letter; Amend TITAN records to show that Mr. Flores has paid dues of $15 per month from January 2015, has a current paid through date of July 2016, and is properly taxed at a rate of $15 per month for the period January 2015 through present; and Post a notice (attached to this Decision as Exhibit 1) on all union worksite bulletin boards under the jurisdiction of Local Union 439. As noted above, Mr. Guertin s application for a stay of the Election Supervisor s remedial order was denied by me on March 18, Appeal by Mr. Guertin Mr. Guertin s March 17 letter appealing ESD 146 reiterates his statements to the Election Supervisor set forth above. Mr. Guertin has also provided copies of written statements by Ms. Powers and another TITAN operator, Tatiana Cortes-Mondragon, as well as documentary evidence that was given to the Election Supervisor during the course of his investigation of the protest. Hearing on Appeal A telephonic hearing on Mr. Guertin s appeal was held on March 24, 2016, attended by Jeffrey Ellison, Esq., Mr. Guertin, Mr. Flores, Reuben Moreno (a Local 439 delegate candidate whose eligibility was previously challenged by Mr. Guertin), and Deborah Schaaf (Office of the Election Supervisor). Mr. Guertin acknowledged that the lack of written authority for the action he directed was a problem in the rules, which have to be corrected, and that the retroactive assessment was bad timing. Mr. Guertin claimed to have no ill intent, but conceded that he relied on the TITAN operator without making any effort to determine the validity of her interpretation of the Construction Hiring Hall Rules or the propriety of the retroactive dues assessment in Mr. Flores s circumstances, e.g., by consulting with union counsel, or with the Election Supervisor. 5

6 Decision of the Election Appeals Master The protest is denied and the decision of the Election Supervisor is affirmed for substantially the reasons set forth in ESD 146. Article VII, Section 12(g) prohibits retaliation for activity protected by the Rules, which includes the right to run for office. In the context of his self-interested challenge to Mr. Flores s eligibility, Mr. Guertin s unquestioning deference to a TITAN operator s unsupported interpretation of the Construction Hiring Hall Rules and acquiescence in the unprecedented application of her interpretation to a member known to be on the OOWCL, amply supports a finding of retaliation. SO ORDERED. /s/ KATHLEEN A. ROBERTS ELECTION APPEALS MASTER April 4,