2001 Election Officer Protest Decisions

Election Officer Protest Decision No. 015

Michael Stuto, a member of Local 79, filed a protest dated May 6, 2001, which was received by the Eastern Region Regional Coordinator on May 7, 2001. Stuto alleges that the Election Judges erred in disqualifying him as a candidate on the grounds that he had not regularly worked at the calling for the entire year prior to the nomination meeting.

Local 79's nomination meeting was held on May 2, 2001. During the preceding year, Stuto was regularly employed by Local 79 contractors for approximately 6 1/2 months, from May 2, 2000 to November 12, 2000. On November 13, 2000, Stuto removed his name from the Local’s out-of-work list. He did not re-register until May 1, 2001. Stuto asserts that he removed his name from the out-of-work list in order to qualify for benefits under the Union’s Annuity Plan. Under the rules of the Plan, a participant is permitted to withdraw one-half of his account balance if he does not work under a Union contract, and contributions are not made to the Plan on his behalf, for a period of six months. Stuto claims that he needed the funds to pay bills associated with his wife’s long running medical problems. On May 4, 2001, Stuto submitted an application for his annuity (on the assumption that he would not actually get a job for 3-4 weeks, thus completing the six month period which commenced on November 13, 2000).

During the 5 1/2 months in which he was not working under a Union contract, Stuto obtained employment on construction projects as a site safety manager. Local 79 does not represent site safety managers. Stuto states that he was offered jobs by Local 79 contractors during this period, but declined the offers because he would not be able to collect his annuity benefits if he worked under a Union contract.

On May 4, 2001, the Election Judges ruled that Stuto was not eligible to be a candidate because he did not satisfy the "working at the calling" requirement set forth in Article V, Section 4 of the Uniform Local Union Constitution. The Judges based their decision on the fact that Stuto had voluntarily removed his name from the Local’s out-of-work list on November 13, 2000, and for the next 5 1/2 months worked as a site safety manager, a non-union position. The Judges concluded that employment as a site safety manager did not constitute "working at the calling," as that term is defined in Article V, Section 4.

Article V, Section 4 of the Uniform Local Union Constitution provides as follows:

No person shall be eligible to hold any office in the Local Union if he has not been regularly working at the calling of the International Union during the entire year immediately prior to nomination. "Working at the calling" shall be defined to include:

(a) Employment for which the Union serves, or is actively seeking to serve, as the collective bargaining representative of employees;

(b) Employment in a full-time official capacity for the Local Union;

(c) Employment by government or the trade union movement in a capacity directly related to the calling and one which would directly benefit the Local Union and its members except that employment by the Local Union in a clerical or administrative position shall not be deemed to be "working at the calling";

(d) Periods of employment where the member was available for and continuously and actively sought employment at the calling which shall be understood to require full compliance with the lawful rules of the referral service or hiring hall, if any, operated by the Local Union;

(e) Members who can prove they were unable to work because of temporary illness or disability of less than one year so long as that member has a reasonable expectation of returning to work in the foreseeable future. 

In examining the circumstances of each particular case, due regard shall be given to the good faith involved. 

Stuto claims that he worked at the calling for the year prior to the nomination meeting because (1) he worked under a Union contract from May to November 2000; and (2) he removed his name from the out-of-work list in November 2000 for medical reasons, i.e., to qualify for benefits under the Union’s Annuity Plan in order to pay bills associated with his wife’s illness.

Stuto does not suggest that his employment as a site safety manager qualifies as "working at the calling."^[1]  Rather, he contends that his employment by Local 79 contractors for part of the year preceding the nomination meeting satisfies Article V, Section 4. However, Article V, Section 4, requires that a member must have been "regularly" working at the calling for the "entire" year immediately prior to nomination.

Stuto voluntarily removed his name from Local 79's out-of-work list on November 13, 2000, and did not re-register until May 1, 2001. By his own admission, Stuto was offered jobs by Local 79 contractors during this 5 1/2 month period, and declined them. Thus, he was not regularly working at the calling, and was not available for such work, during the entire year immediately prior to nomination.

Stuto’s claim that his case falls within the parameters of Article V, Section 4(e) is unavailing. Article V, Section 4(e) applies to members who were unable to work during the previous year because of their own temporary illness or disability. It does not apply to members who did not work because of illness in the family. See, e.g., In the Matter of Local 270, IHO Order and Memorandum, 99-53P (July 7, 2000)(six month vacation taken by member in year preceding election in order to spend time with his family was unreasonable length of absence and not a good faith effort to work at the calling).

While Stuto's decision to decline employment with Local 79 contractors in order to qualify for his annuity, and so pay for his wife's medical care, is understandable, and even admirable, he cannot have it both ways. He cannot decline to work at the calling, albeit for legitimate family reasons, and at the same time claim the advantages of working at the calling.

The decision of the Election Judges was consistent with the provisions of the Uniform Local Union Constitution. Accordingly, the protest will be denied.

The protest is denied.

The protester, the Union, or any adversely affected candidate not satisfied with the Decision of the Election Officer has 24 hours from receipt of this Decision by mail or facsimile copy (whichever arrives first) within which to file an appeal with the Appellate Officer, W. Neil Eggleston, Howrey & Simon, 1299 Pennsylvania Ave., NW, Washington, D.C. 20004 (Fax: 202-383-6610). Such appeal shall be made in writing and shall be delivered to the Appellate Officer, the Election Officer, and all other parties to the dispute by personal delivery, overnight mail, or by facsimile transmission, with a copy of the original protest attached.

^[1] The Independent Hearing Officer has ruled twice that employment as a site safety manager does not constitute “working at the calling.”  In the Matter of Local 79, IHO Order and Memorandum, 00-21P (May 26, 2000); In the Matter of LIUNA Local 300, IHO Order and Memorandum, 95-23P (December 12, 1995).