Protest Decisions

IN RE: JAMES D. JACKSON,
Eligibility Decision 2000 EAD 47
Issued: November 7, 2000
OEA Case No. E102501MI

On Sunday, October 22, 2000, Local 299 held its nominations meeting for delegates and alternate delegates to the International Convention. By letter received on October 25, 2000, Local 299's secretary-treasurer James D. Jackson filed a pre-election protest pursuant to Article XIII, Section 2(b)(1) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") in which he alleges that James A. Pace (nominated as a delegate); Lester B. Stanley, Jr. (nominated as an alternate delegate); and Richard Bielewski (nominated as an alternate delegate) were ineligible to run as candidates to the International Convention.

Election Administrator representative Lois M. Tuttle investigated this protest.

Article VI, Section 1(a) of the Rules provides:

To be eligible to run for any Convention delegate, alternate delegate or International officer position, one must:

(1) Be a member in continuous good standing of the Local Union, with one's dues paid to the Local Union for a period of twenty-four (24) consecutive months prior to the month of nomination for said position with no interruptions in active membership due to suspensions, expulsions, withdrawals, transfers or failure to pay fines or assessments;

(2) Be employed at the craft within the jurisdiction of the Local Union for a period of twenty-four (24) consecutive months prior to the month of nomination; and

(3) Be eligible to hold office if elected.

I. TITAN records of three candidates

According to their TITAN records, all three candidates (Pace, Stanley, and Bielewski) are members of Local 299 on dues check-off.

Mr. Pace's TITAN record reflects that his employer timely paid his dues for every month within the relevant 24-month period except September 2000. Even as late as November 2, 2000, payment of September 2000 dues was still not shown.

Mr. Stanley's TITAN record reflects that his employer transmitted late payments for March 1999, when he is shown as being on dues check-off; and for August 2000, when he is shown as making a cash dues payment on September 18, 2000. August 2000 is the only month within the relevant time period for which Mr. Stanley is shown as being a cash dues payer. A June 15, 2000 payment of $40 is incorrectly posted to the month of May 2000 rather than June 2000, and a July 13, 2000 payment of $40 is incorrectly posted to the month of June 2000 rather than July 2000. This is a TITAN error rather than an error of Mr. Stanley's or his employer's. Each of these payments is $1 short of the correct dues amount ($41 per month was the proper dues rate in the months of June and July 2000), a difference which signals his employer's failure to transmit the correct dues rate after a recent dues increase. This dues increase was more than made up in the months of September and October 2000, when the $2 arrearage as well as a $4 overage were collected from Mr. Stanley.

Mr. Bielewski's TITAN record reflects that his employer timely paid his dues for every month within the relevant 24-month period except September 1999. Payment for Mr. Bielewski's September 1999 dues was tendered by his employer on October 18, 1999, along with an additional $40 payment for Mr. Bielewski's October 1999 dues.

II. Investigation Results of Three Candidates

Article X, Section 5(c) of the IBT Constitution provides, in relevant part, "All members paying dues to Local Unions must pay them on or before the last business day of the current month…However, a member on dues checkoff whose employer fails to make a proper deduction during any month in which the member has earnings from which the dues could have been deducted shall not lose good standing status for that month. In such an event, the Local Union shall notify the member of his employer's failure and payment shall be made by the member within thirty (30) days of said notice in order to retain good standing status." (emphasis added)

The Election Administrator representative had previously investigated Mr. Stanley's eligibility pursuant to his written request for eligibility verification received on October 16, 2000. Pay stubs submitted by Mr. Stanley revealed that he had sufficient income to pay dues for every month in question, including March 1999 (for which his employer, Consolidated Freightways, transmitted a check-off payment on April 8, 1999); August 2000 (for which Consolidated Freightways transmitted no check-off payment but for which Mr. Stanley provided a cash dues payment on September 18, 2000); June 2000 (when Mr. Stanley's employer transmitted $40 rather than the proper dues rate of $41); and July 2000 (when Mr. Stanley's employer transmitted $40 rather than the proper dues rate of $41).

Mr. Stanley states that he had a heart attack on July 1, 2000. He was out of work until August 8, 2000. Mr. Stanley did receive earnings from Consolidated Freightways throughout both July and August 2000, as reflected by pay stubs he provided to the Election Administrator representative. However, Consolidated Freightways did not withhold Mr. Stanley's dues from his paychecks in August 2000. Mr. Stanley realized this in September 2000, at which time he promptly reported the problem to his local and paid the missing August 2000 dues (as well as the $2 arrearage owing from the dues increase for June and July 2000).

The investigation revealed that Mr. Stanley should not have been reflected as a "cash dues" member in August 2000 as he was on checkoff and earning income from his employer at the time. The late check-offs by Mr. Stanley's employer in March 1999 and August 2000, as well as his employer's payments of June 2000 and July 2000 under the old dues rate, were not Mr. Stanley's fault and were corrected promptly by either Mr. Stanley or Consolidated Freightways. Therefore, Mr. Stanley was eligible to run as an alternate at the October 22, 2000 nominations meeting, as the Election Administrator informed him on October 18, 2000.

In response to this protest, the Election Administrator representative investigated the eligibility of Mr. Pace and Mr. Bielewski, both employees of Yellow Freight. She contacted Karen McQuilty, Payroll Administrator, with regard to the earnings of Mr. Pace for the month of September 2000; and of Mr. Bielewski for the month of September 1999.

Ms. McQuilty verified that Mr. Pace had sufficient earnings to pay his September 2000 dues. Mr. Pace only recently realized that his employer had not deducted his union dues from any of his September 2000 paychecks. Until that point, he had no notice of Yellow Freight's failure to deduct dues for September 2000. He believes Yellow Freight may have failed to deduct his dues amount for the month of September 2000 because he went on vacation in the first week of September 2000 after Labor Day. However, Mr. Pace says that he noticed that Yellow Freight recently deducted an amount of $82 from his last paycheck for October 2000, which constitutes the proper union dues amount for September 2000 as well as October 2000.

Ms. McQuilty also verified that Mr. Bielewski had sufficient income in September 1999 from which dues could have been deducted. The evidence shows that the failure to timely transmit Mr. Bielewski's payment September 1999 dues payment until October 18, 1999 was Yellow Freight's, rather than Mr. Bielewski's, fault.

Accordingly, it is the determination of the Election Administrator that Mr. Pace, Mr. Stanley, and Mr. Bielewski were ELIGIBLE to run for the positions of delegate and alternate delegates, respectively. Therefore, the protest is DENIED as to all three candidates.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Administrator, 727 Fifteenth Street, N.W., 10^th Floor, Washington, DC 20005, Facsimile (202) 454-1501. A copy of the protest must accompany the request for a hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

Michael Nicholson, Michigan Area Regional Director

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