Protest Decisions

IN RE: JAMES EARLS,
Eligibility Decision 2001 EAD 98
Issued: January 24, 2001
OEA Case No. E010414SO

See also Election Appeals Master decision 01 EAM 24 (KC)

On November 17, 2000, James Earls, a member of Local Union 402, filed a request with this office to verify his eligibility to run as a delegate or alternate delegate to the International Convention. Along with his verification request form, Mr. Earls submitted a four-page, single-spaced letter and a ream of supporting documents, by which he sought to explain why he had not timely paid his dues on a cash basis and why he had incurred a suspension for non-payment of dues after he had been discharged from his job at the United Parcel Service ("UPS") during the applicable 24-month period.

On January 3, 2001, after a lengthy investigation of Mr. Earls' verification request by Election Administrator representative Lois M. Tuttle, the Election Administrator determined Mr. Earls ineligible to run as a candidate for failing to timely pay his dues for the months of October 1999 through March 2000, and for the suspension imposed on him in March 2000 for failure to pay dues over that period. On January 4, 2001, Mr. Earls timely appealed this decision.

I. Investigation into Mr. Earls' Eligibility Status

The TITAN record reveals that during the eligibility period, Mr. Earls was a member on checkoff whose dues were transmitted approximately two weeks late for January 1999. In February 1999, no dues were deducted as Mr. Earls appeared to have an overage. However, one dollar was deducted in March 1999 and credited towards February 1999 dues to reflect a recent rate increase. Between March and September 1999, Mr. Earls' employer (UPS) made timely checkoff payments. However, between October 1999 and April 2000, no dues payments were received and the record shows that Mr. Earls was retroactively placed on suspension on March 6, 2000 for only two months (September and October 1999) during that period. (It is unclear why Mr. Earls was reflected as being suspended for the month of September 1999 since his employer in fact paid his September 1999 dues on time.) On April 4, 2000, the record shows that Mr. Earls paid $240.00 to the local, an amount which appears to reflect a reduced dues rate of $30.00 per month over a total of eight months (September 1999 through April 2000, presumably). This amount would appear to be mistaken, as Mr. Earls is shown to have paid dues for the month of September 1999 in the amount of $42.00. Thus, the $240.00 appears to reflect an overpayment of $30.00 for the month of September 1999.

On April 4, 2000, Mr. Earls' suspension is reflected as having been lifted even though he is not shown as paying a reinitiation fee, as required under his local's bylaws and the IBT Constitution. On June 14, 2000, Mr. Earls is shown as making an untimely (and $2 short) cash payment of $42.00 towards his May 2000 dues. On July 31, 2000, his employer's first renewed checkoff payment was credited towards his June 2000 dues. From that point on, his employer is shown as making timely checkoff payments towards Mr. Earls' dues. (In fact, in November 2000 his employer overpaid by three months, bringing Mr. Earls current through February 2001.)

Investigation revealed that Mr. Earls was discharged from his job from UPS in August 1999, after Mr. Earls helped the secretary-treasurer, Michael Kendrick, to organize a local plant in Huntsville, Alabama called Pittsburg Plate Glass. Shortly thereafter, Mr. Earls filed two grievances, one with the local, and one with the National Labor Relations Board (hereinafter "NLRB"), claiming that he had been discharged for engaging in protected concerted activities. After this happened, Mr. Earls stated that he asked Mr. Kendrick if he should take an honorable withdrawal (which, in these circumstances, would have cut off Mr. Earls' eligibility during the 24-month continuous period). Mr. Kendrick told Mr. Earls that he need not do this as he expected that Mr. Earls would be back to work the following week. According to Mr. Earls, Mr. Kendrick also stated that during the illegal discharge, Mr. Kendrick would make sure that Mr. Earls' dues were paid even if Mr. Kendrick had to pay them himself. Mr. Kendrick didn't remember using these exact words, but did remember telling Mr. Earls not to worry about paying his dues, that the union would take care of them. According to Mr. Kendrick, this is the advice (however ill-advised) that he provides to all Teamsters members who he believes to have been illegally discharged, since he assumes that any back pay award will cover the period during which the member was illegally discharged and unemployed.

The evidence further revealed that shortly thereafter, Mr. Kendrick learned that UPS was not interested in quickly reinstating Mr. Earls. Therefore, a few days later, Mr. Kendrick secured Mr. Earls a Teamster job on a pipeline project, in mid- or late-August 1999.

At this point, Mr. Earls' and Mr. Kendrick's accounts of what happened diverge. This circumstance (Mr. Earls' securing a paid job) also signals where his dues woes truly began.

According to Mr. Kendrick, while talking to Mr. Earls about the pipeline job he never actually told Mr. Earls that Mr. Earls should start paying his dues on a cash basis. However, Mr. Kendrick stated that he was confident that Mr. Earls was thoroughly familiar with the IBT Constitution and the union's bylaws and that Mr. Earls knew that he would be responsible for his dues once he began working again.

Mr. Earls, on the other hand, claims that he believed that Mr. Kendrick, or the local union, would be responsible for paying his dues until he regained his job with UPS. He believed this was true even though Mr. Kendrick had secured him a new job with the pipeline in a matter of days.

Mr. Earls' oral statements do not appear consistent with his written statements in his letter submitted with his eligibility request, in which Mr. Earls explained that at the start of the pipeline job, he asked the office manager whether or not he should fill out a dues checkoff card for Local 612 (the local in which jurisdiction that branch of the pipeline happened to be in). During the investigation, Mr. Earls stated that he found the dues checkoff card in the paperwork he was given when he first got the pipeline job. He further stated that he spoke to James Trawick, a.k.a. "Outlaw," steward for Local 612, about whether he should fill out the dues checkoff card and about the "agreement between Mike [Kendrick] and myself." Mr. Earls claimed that Mr. Trawick at first stated that he was not sure whether Mr. Earls should sign the dues checkoff card since Mr. Earls was a member of 402, but that after consulting with Mr. Kendrick, Mr. Trawick repeated Mr. Kendrick's statements that the union would take care of Mr. Earls' dues. Mr. Earls directed the Election Administrator representative to speak with Mr. Trawick to back up his testimony.

Mr. Trawick acknowledged that he was a steward for Local 612, and that Mr. Earls had worked in this jurisdiction until January 7, 2000 on the pipeline job. However, Mr. Trawick said that he never had any discussions with Mr. Earls about dues checkoff cards or any alleged agreements with Mr. Kendrick to pay Mr. Earls' dues. He also never had any discussions with Mr. Kendrick about Mr. Earls' dues. In fact, Mr. Trawick stated that Local 612 doesn't use dues checkoff. Moreover, he stated that no member on the pipeline project could or would sign a checkoff card with that particular employer since the project actually branched across several local's jurisdictions (as covered by the pipeline itself). Therefore, Mr. Earls' claims about why he failed to pay dues at this point are simply not credible.

On or about January 7, 2000, the pipeline job ended. The local continued to pursue Mr. Earls' discharge case and Mr. Kendrick provided Mr. Earls with a spot in a class to become certified to drive a hazardous material truck for an Army construction job. Mr. Earls continued to pay no dues.

On February 10, 2000, Mr. Kendrick sent Mr. Earls a letter informing him that according to the local's records, he was more than three months behind in his dues. The letter further stated that according to the local's bylaws, Mr. Earls would have to be suspended for nonpayment. It also asked Mr. Earls to respond within ten days.

For some reason, Mr. Earls claims not to have received this letter but to have learned of the local's intent to suspend him "by accident" in a conversation with Janice Malone, the local's office manager. He acknowledges, however, to have received knowledge of the local's intent to suspend him through this "accidental" conversation in February 2000, around the very same time when he would be assumed to have received Mr. Kendrick's letter.

According to Mr. Earls, he did not immediately resolve to pay his dues arrearage as he thought that Mr. Kendrick, or the local, should be responsible for the dues owed from the beginning of his discharge from UPS (and continuing through the time when he was actually working at the pipeline job). However, after speaking with his local's vice president, Hershel Davenport, International Vice President Ken Wood, and IBT Small Package Director Richard Heck, he decided that he had no choice but to pay the arrearage. Therefore, he finally mailed a check to Mr. Kendrick for $240, an amount which reflected eight months' worth of dues at the lowest dues rate.

Mr. Earls admitted that at the time he sent this check, he knew that he did not have sufficient funds to cover it. He stated that before mailing the check, he called Mr. Kendrick and asked him to hold off cashing the check for about a week, until his next unemployment check came in and until members of his local got a chance to collect some funds for him toward the dues arrearage.

Ms. Malone's notes reflect that, in fact, on February 15, 2000 Mr. Earls called the local and promised to come in and pay his dues arrearage "when his checks came in." Her notes (and the TITAN record) further reflect that on March 6, 2000, she placed Mr. Earls on suspension when no payment on the dues arrearage was received by that time. Mr. Kendrick stated that he did not remember any conversations with Mr. Earls about his check or holding off on cashing it. However, Mr. Kendrick pointed out that the check, dated March 25, 2000, was not actually processed until April 13, 2000, approximately two weeks from the date at which the check was received by the local (March 28, 2000). On April 4, 2000, after receiving the check but before processing it, Ms. Malone entered the suspension as lifted on the TITAN record. However, on or about April 17, 2000, the check was returned to the local for "Uncollected Funds." Mr. Kendrick and Ms. Malone further point out that the check was actually drawn against Mr. Earls' wife's account, and apparently signed by Mr. Earls in his wife's name, from whom Mr. Earls was separated at the time. In his discussions with the Election Administrator representative, Mr. Earls neglected to mention these facts.

After the check was returned to the local for insufficient funds, Ms. Malone contacted Mr. Earls. He came in to the local and paid the $240 in cash a few days later.

On May 5, 2000, Mr. Earls signed onto a final and binding settlement of his NLRB grievance entered into between the Union and his company. By the terms of this settlement, Mr. Earls' termination was converted into a disciplinary suspension from work effective as of August 11, 1999, to remain in effect up to and including December 31, 1999. He was reinstated as an employee of UPS effective January 1, 2000, and awarded back pay effective January 1, 2000 until the date of his return to work.

Over the next two months, Mr. Earls filed several requests for various documents and other information from his local. In July 2000, he filed a complaint with the Independent Review Board ("IRB") claiming that his suspension for nonpayment of dues was unjust and accusing Mr. Kendrick of "a possible conspiracy to take me out of the political arena altogether." The foundation for his accusation appears to be a statement provided to him in July 2000 by Mr. Kendrick's brother-in-law, Dennis Bolton, allegedly made by Mr. Trawick in December 1999, that Mr. Kendrick told him that he would "make Earls go suspended" for political reasons. Mr. Trawick denies ever hearing such a statement by Mr. Kendrick or having told Mr. Bolton of such a statement. Mr. Bolton could not be reached as neither Mr. Earls nor Mr. Kendrick had any information as to his current address. Mr. Kendrick stated that he and his family had last had knowledge of Mr. Bolton's whereabouts in early fall of 2000, while his sister was very ill and pursuing divorce proceedings from Mr. Bolton. However, Mr. Kendrick stated that Mr. Bolton subsequently disappeared and could not be reached when his family tried to contact him in October 2000, to inform him that Mrs. Bolton had passed away on October 10, 2000. The complaint which Mr. Earls filed with the IRB is apparently still pending at this time.

In August 2000, Mr. Earls filed as a grievance what appears to be a request that his employer, UPS, withhold ten months worth of dues. It is unclear why he would have done this except as an attempt to retroactively "cure" the untimeliness of his dues payments and the suspension imposed on him by the local. Whatever his reasons, in October 2000 Ms. Malone sent him a copy of his checkoff billing for September 2000 along with a note that the local had requested UPS to hold out $336, but that UPS had not transmitted this amount to the local.

In November 2000, Mr. Earls filed a request to verify his eligibility to run as a delegate with both our office and with that of his local. On November 20, 2000, Mr. Kendrick responded to Mr. Earls that he had decided not to make a ruling on Mr. Earls' eligibility to run for delegate as such a ruling would "surely be appealed to the Election Administrator." Such a response was appropriate under the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"), which grant authority to make eligibility decisions pertaining to this election to the Election Administrator rather than to the Secretary-Treasurer of Mr. Earls' local union.

Nevertheless, Mr. Earls continued to exert pressure upon Mr. Kendrick to issue a decision, particularly when it became clear to him that this office had serious doubts regarding his credibility and eligibility status. On December 19, 2000, Mr. Kendrick, unbeknownst to the Election Administrator or his representative investigating this case, sent Mr. Earls a letter stating that he had "decided that it would be best for all involved that I rule that you are eligible to run in these elections," including the International Union Delegate and Officer Election. When questioned by the Election Administrator representative, Mr. Kendrick as much as stated that he had sent the letter not because he believed that Mr. Earls had satisfied the 24-month requirement of continuous good standing found in the IBT Constitution, but because he wished to save the local the time and trouble of dealing with additional appeals and complaints from Mr. Earls should he be found ineligible. At any rate, Mr. Kendrick's letter has no bearing on this case as only the Election Administrator has the authority to determine eligibility matters relating to the IBT International Union Delegate and Officer Election.

II. Analysis of Mr. Earls' Eligibility Status

Article VI, Section 1(a)(1) of the Rules provides, in relevant part, that in order to be eligible to run for any Convention delegate, alternate delegate or International officer position, one must 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.

Here, the evidence shows that Mr. Earls, a checkoff employee with UPS, failed to timely pay his dues for October 1999 through March 2000 on a cash basis after he was terminated from his UPS job in mid-August 1999. Election Officer Quindell has held that where a checkoff employee is discharged for misconduct but subsequently reinstated with back pay as a result of a grievance, the member is "deemed to have had income from which dues could have been deducted" in the months covered by the back pay award. See Thompson, 1996 E20 (January 18, 1996). In this case, Mr. Earls was reinstated in May 2000 with back pay for the period January 1, 1999 through May 2000. Therefore, he is "deemed to have had income from from which dues could have been deducted" for three of the months in question, namely, January through March 2000. Mr. Earls did ultimately pay the local for those months in April 2000, even before he received the back pay award. As a result, Mr. Earls' checkoff payments for those months will be deemed timely.

However, the back pay award did not cover three months during which Mr. Earls did not pay timely dues, October through December 1999. Mr. Earls' complicated tale of "deceit and conspiracy" by the local's secretary-treasurer is simply not credible and is legally insufficient to justify his failure to timely pay dues for those months, or to prevent the imposition of his suspension for such failure in March 2000.

Specifically, we find that although Mr. Kendrick initially told Mr. Earls that he "need not worry" about paying his dues immediately after his dismissal from UPS in August 1999, Mr. Earls understood this to apply only to periods of unemployment. Otherwise, Mr. Earls would have had no reason to inquire about checkoff cards once he started the pipeline job in late August 1999 or to provide our office with false reports of conversations between the Local 612 steward and his local's secretary-treasurer regarding his eligibility status which, according to both Mr. Trawick and Mr. Kendrick, simply did not take place. Therefore, we find that Mr. Earls knew that he had a duty to timely pay his dues while he was working at the pipeline job in Local 612's jurisdiction. In September 1999, Mr. Earls still had sufficient income to pay dues from UPS as a checkoff employee. However, for the months October through December 1999, he had no income from UPS from which dues could be deducted. Thus, his failure to timely pay dues for those months, as well as his suspension for failing to timely pay dues for those months, would cut off his eligibility.

As such, we UPHOLD our prior ruling finding Mr. Earls INELIGIBLE to run as a delegate or alternate delegate in the International Convention.

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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