Protest Decisions

IN RE: MIKE FARRELL,
Eligibility Decision 2000 EAD 49
Issued: November 20, 2000
OEA Case No. E102502MI

On Sunday, October 1, 2000, Local 767 held its nominations meeting for delegates and alternate delegates to the International Convention. On October 24, 2000 Local 767 member Mike Farrell 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 contested three of the candidates' eligibility to run as delegates, Wesley Jenkins (the local's president), Gerald Thompson (the local's secretary-treasurer), and John Shorts (a business agent).

Election Administrator representative Lois M. Tuttle investigated this protest.

Article XIII, Section 2(b) of the Rules requires pre-election protests, including those regarding candidates' eligibility, to be filed "within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested." Mr. Farrell admits that he knew of the nominations of candidates Jenkins, Thompson, and Shorts at the October 1, 2000 nominations meeting. However, he contends that he did not become "aware of or reasonably become aware of" potential problems with these candidates' eligibility until Monday, October 23, 2000. On that day, Jacqueline Johnson, a former business agent of Local 767, mentioned in a conversation with Mr. Farrell that in Spring of 1999 an auditor discovered that the local's business agents and officers had not been paying the correct amount of dues. Ms. Johnson also stated that the officers and business agents, including candidates Jenkins, Thompson, and Shorts, had to reimburse the local approximately $80.00 in order to catch up their dues.

There is no evidence that would lead the Election Administrator to doubt Mr. Farrell's assertion that he did not know and reasonably could not have known of the result of the audit prior to Monday, October 23, 2000. Mr. Farrell did file his protest within two working days of such knowledge, that is, by October 25, 2000. Mr. Farrell's protest would be timely so long as the need to provide him with an accurate and fair resolution of his allegations were not outweighed by the risk of hindrance to the election. This risk is great given that Mr. Farrell filed his protest twenty-four days after the date of the nominations meeting date and within a week of the date that the local's ballots were to be printed and mailed. See Stansburge, E99 (February 15, 1996)(protest filed 13 working days after local union's nomination meeting but one day after actual knowledge of the candidate's nomination was untimely given time concerns relative to printing and distributing ballots); and Hughes, E119 (February 27, 1996)(protest filed 13 working days after local union's nominations meeting but one day after learning of possibly disqualifying eligibility factor was timely where ballots had yet to be printed and sufficient time remained for resolution of protest and any appeal it might engender before ballots printed and mailed).

Assuming arguendo that Mr. Farrell's appeal was timely filed, an investigation was done to determine whether all three candidates were eligible to run as delegates. In pertinent part, 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.

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)

Mr. Jenkins and Mr. Thompson have been president and secretary-treasurer (respectively) of the local since January 1998, and have authorized the local to checkoff their dues. The local's TITAN operator confirmed that in late March 1999 an IBT auditor named Tony Mathis conducted an audit of the local's finances. The TITAN operator stated that Mr. Mathis discovered, while conducting his audit, that the local had mistakenly failed to deduct dues from a number of officers and business agents, including Mr. Jenkins and Mr. Thompson, at the correct rate of dues (equivalent to the highest dues rate charged to its highest-paid members) for the months of March 1998 through April 1999. Instead, the local had undercharged these officers by approximately $1 or $2 per month over this period.

In order to correct this error, Mr. Mathis instructed the local's TITAN operator to correct the dues posted at incorrect rates and to re-post the dues under the correct rates. The TITAN operator did this on March 24, 1999, correcting the errors so that Mr. Jenkins' and Mr. Thompson's dues were paid up at the correct rate through April 1999.

The local's TITAN operator stated that the failure to deduct the correct amount of dues during each of the relevant months was the fault of the local and not that of the local's officers. Mr. Jenkins and Mr. Thompson assert that they were unaware of the mistake until after the audit. We have no reason to disbelieve the assertions of the TITAN operator or of Mr. Jenkins and Mr. Thompson. After the audit, the mistake was promptly corrected and the proper amounts paid. Thus, none of the candidates would be at fault even if this mistake had caused them to fall behind in their dues over the relevant twenty-four month period.

In fact, the mistake did not result in either Mr. Jenkins or Mr. Thompson falling behind in their dues. During the period March 1998 and April 1999, the local had paid both Mr. Jenkins' and Mr. Thompson's dues a full month in advance for each applicable month. Thus, each of these officers actually had an overage in each applicable month, in spite of the undercharged dues rate. As a result, neither officer was required to pay any additional money to the local after the audit to make up for the incorrect amount of dues deductions. All that was necessary was for the TITAN operator to make the correct postings in order to eliminate the discrepancies showed in the TITAN listings.

Therefore, there is no question that during the relevant 24 month period Mr. Jenkins and Mr. Thompson were members in good standing with their dues paid up over that period.

Mr. Shorts was hired on as a business agent of the local in August or September 1998.
Like Mr. Jenkins and Thompson, he is also a member on dues checkoff. Perhaps because he was hired at a later date, Mr. Shorts' TITAN record reflects different mistakes other than those shown on Mr. Jenkins' and Thompson's records. According to his TITAN record, Mr. Shorts' dues for the month of September 1998 were checked off six days late. The TITAN record also shows that for three months (January, February, and March 1999) Mr. Shorts was charged dues at an incorrect rate of $34 per month rather than the correct rate of $43 per month. The TITAN record reflects that this error was corrected on March 24, 1999, the date when other errors discovered by Mr. Mathis in the March 1999 audit were corrected by the TITAN operator.

The TITAN operator stated that Mr. Shorts had sufficient income from which dues could have been deducted in September 1998. She also verified that Mr. Shorts had sufficient income to pay dues at the correct rate of $43 per month for the months of January, February, and March 1999. She stated that the local first discovered its mistake of charging Mr. Shorts at the incorrect dues rate of $34 for each of these months at the audit that Mr. Mathis conducted in March 1999. Immediately thereafter, she informed Mr. Shorts of the mistake and he paid $27, the amount necessary to correct for the three-month error.

Thus, the evidence shows that Mr. Shorts had sufficient income for all months in question; that any late or incorrect payments were the fault of the local, rather than that of Mr. Shorts; and that Mr. Shorts promptly paid any dues owed as a result of the local's incorrect charges. Therefore, during the relevant 24 month period Mr. Shorts was a member in good standing with his dues paid up over that period.

Accordingly, it is the determination of the Election Administrator that candidates Jenkins, Thompson, and Shorts are ELIGIBLE to run as delegates. 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 two (2) working days of receipt of this decision. 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

Dolores C. Hall, South Area Regional Director

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