Mr. Timothy J. Riley
Dear Brother Riley:
I have your June 24, 2009 letter to me, which you state is your formal protest of the Local Union 363 election held on June 23, 2009. Specifically you challenge the removal of your name from the ballot for the offices of president and Delegate to the Convention.
In your letter, you reference the IBEW Basic Laws & Policies, as well as Article XV, Section 5, of the IBEW Constitution. You state that, within the meaning of those documents, you are neither and employer nor a partner in an electrical employing concern. Therefore, you state that you are eligible to hold the offices of President of Local Union 363 and Convention Delegate. You also note that you have held the office of Local Union 363 President for ten years.
Based on my review of the controlling authorities in this matter, and considering your employment status with MEHL Electric Company, I am unable to uphold your protest. My decision is based on a number of factors.
First, you state that you are not an electrical employer or a partner in an electrical employing concern, within the meaning of Article XV, Section 5 of the IBEW Constitution. Your June 2 letter to me, however, describes your position with MEHL Electric as “Project Executive Supervising Manpower.” Moreover, in MEHL Electric’s own listing of its “Key Personnel,” you are listed as “Project Executive” who has “field and supervisory experience” and whose responsibilities “have included On-site Project Manager” for 20 Years. Under Job Function, it states that you “Supervise specific projects and field operations within Rockland County NY and Northern NJ.” In addition, you are MEHL Electric’s representative in the Construction Contractors Association of Hudson Valley.
Second, although you cite Article XV, Section 5, of the IBEW Constitution, the question of ineligibility of a member as an employer is determined by other considerations as well. For example, Article XXIV, Section 1, of the IBEW Constitution, is also relevant. It refers to a member who becomes a “general manager of superintendent,” and notes that such a member is eligible to request a withdrawal card. And, since such a member would be sufficiently identified with management, it further states that “the L.U. has the right to require such a member to take out a withdrawal card if it so decides.” Based on the relevant materials concerning your employment by MEHL Electric, it is Apparent that your role within MEHL Electric is a step beyond either general manager or superintendent.
Third, the IBEW has a set of Guidelines on the subject of “Candidate/Voter Eligibility for Local Unions with Employer-Members.” This document has been provided on earlier occasions to the U.S. Department of Labor. Under those Guidelines, among the factors to be considered in determining whether a member should be declared ineligible as an employer, are whether he/she (1) decides which jobs and to bid and/or (2) schedules jobs and /or assigns manpower to specific jobs. Considering these factors and your role with MEHL Electric, it is my judgment that you are and employer within the meaning of those Guidelines.
Finally, Part 452 of the Department of Labor Regulations deals with the election provisions of the LMRDA of 1959. Section 452.47 deals specifically with employer members who are not eligible to serve as officers of their union. That provision notes that the reasonableness of a disqualification from holding office “depends on the particular circumstances” of each situation. Another DOL publication – “Conducting Local Union Officer Elections – A Guide for Election Officials” – states, at page 15 that: “members who are supervisors on a permanent (meaning ongoing) basis may not hold union office.”
The particular circumstances with respect to your functions of behalf of MEHL Electric lead me to conclude that, within the letter and the intent of the IBEW Constitution, you qualify as an employer and are therefore ineligible to hold office in Local Union 363.
Donald C. Siegel
International Vice President