Protest Decisions

IN RE: MARY SHUBERT, JAMES SMITH, JR., GERARD McNAMARA, KEVIN SULLIVAN, JAMES AYLING, CHARLES ARGEROS and JEROME LANE,
Eligibility Decision 2001 EAD 119
Issued: January 31, 2001
OEA Case Nos. E010811ME, E0109111AT, E0110111ME, E011012ME, E011013ME, E011014ME, E011015ME, E011016ME, E011017ME

See also Election Appeals Master decision 01 EAM 29 (KC)

Local 115, a local which has been in trusteeship since November 15, 1999, held its nomination meeting on January 7, 2001. In that meeting, nine delegates and nine alternate delegates ran as members of three full slates, the Local 115 Members First Slate, the Members First Slate, and the Teamsters United Slate. Additionally, two members ran for delegates as part of the Petrites Slate, and three members ran individually for delegate.

On January 8, 2001, the Election Administrator received an eligibility protest from James Smith, Jr., a candidate for delegate in the Local 115 Members First slate, against Mary Shubert, a candidate for delegate in the Members First slate. On January 9, 2001, the Election Administrator received an eligibility protest from Gerard McNamara, a candidate for delegate in the Members First Slate, against Mr. Smith. On January 10, 2001, the Election Administrator received an eligibility protest from Alvaro Quinones, a candidate for delegate in the Teamsters United slate, against Mr. Smith, Mr. McNamara, and Ms. Shubert; as well as against Kevin Sullivan, a candidate for delegate in the Members First Slate; Jerome "Butch" Lane and Charlie Argeros, candidates for delegate and alternate delegate (respectively) in the Local 115 Members First slate; and James Ayling, an individual candidate for delegate.

On January 22, 2001, Mr. McNamara sent the Election Adminstrator a letter stating that he agreed to withdraw his protest, filed as E0109111AT, against Mr. Smith. Election Administrator Lois M. Tuttle investigated the remainder of these consolidated protests.

Article VI, Section 1(a) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("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.

In addition to being eligible for nomination in his or her own right, a candidate for delegate or alternate delegate must also be nominated and seconded by a nominator in good standing, each with his or her dues paid through the month prior to the nomination meeting. Article II, Sec. 5(h) of the Rules.

I. Mary Shubert

Ms. Shubert's eligibility was challenged by both Mr. Smith and Mr. Quinones. Mr. Smith alleges that Ms. Shubert is ineligible to run as a delegate or alternate delegate because she has not paid timely dues during the last approximately twenty months when she was on workers' compensation and receiving no income from her employer. Mr. Quinones claims that Ms. Shubert is ineligible to run as a candidate because she has "not worked at the craft" for the requisite 24-month period. Mr. Quinones also refers to a sworn affidavit which Ms. Shubert allegedly submitted to the IBT regarding incidents of theft, which he claims Ms. Shubert admitted while serving as a steward.

The TITAN record shows that Ms. Shubert's employer stopped transmitting dues to the local in August 1999, around the time when Ms. Shubert is alleged to have gone on workers' compensation and received no income from her employer. At that point, Ms. Shubert is reflected as a cash dues payer rather than a checkoff employee. She made late cash payments nine months within the 24-month period, namely, October and December 1999, January 2000, March through April 2000, and August through November 2000.

Ms. Shubert does not contest the claims that she was on workers' compensation and receiving no income since August or September 1999, or that she made late payments while she was responsible for transmitting dues on a cash basis. Rather, by letters dated January 27, 2001, Ms. Shubert requests that the Election Administrator grant her a waiver from the 24-month timely dues requirement for good cause shown pursuant to Article VI, Sec. 2(i) of the Rules. Essentially, she claims that Local 115, a local in trusteeship, denied her and other members the right to receive copies of the IBT Constitution, the local bylaws, and any labor contracts that she (or they) have worked under. Therefore, she contends that she should not be held accountable for her failure to make timely cash dues payments as required under Article VI, Section 1(a)(1) of the Rules.

Under Article VI, Sec. 2(i) of the Rules, either the Election Administrator or the General Executive Board may, in the case of a trusteed local and upon good cause shown, waive any or all of the eligibility requirements required of a candidate for delegate or alternate delegate. Ms. Shubert did not make her request in sufficient time to allow the Election Administrator to investigate the merits of her claim prior to Local 115's nomination meeting date or to decide whether a full or partial waiver of eligibility requirements should have been granted to all members of the local as a result. Therefore, her request for a waiver is DENIED.

Mr. Quinones' claim that Ms. Shubert has not "worked at the craft" because she has been out on workers' compensation during the 24-month period is misplaced. A member is not considered to violate Article VI, Sec. 1(a)(2) of the Rules simply because he or she has suffered a work-related injury which requires the member to be out on workers' compensation. Moreover, Mr. Quinones' claim that Ms. Shubert has admitted to incidents of theft in a sworn affidavit does not, without more, point to any Rules violation which would affect her eligibility. Mr. Quinones acknowledges, for example, that he knows of no ethical or other charges that have been brought by the local or the IBT against Ms. Shubert which would in any way affect her eligibility status as a result of the alleged behavior. Moreover, he knows of no criminal conviction which might render her ineligible to hold office if elected.

Therefore, Mr. Quinones' protest against Ms. Shubert is DENIED. Mr. Smith's protest against Ms. Shubert, however, is GRANTED as the evidence shows that Ms. Shubert has not timely paid her dues over the 24-month continuous period. The Election Administrator finds Ms. Shubert INELIGIBLE to run as a candidate for delegate in the International Convention.

II James Smith, Jr.

Mr. Quinones claims that Mr. Smith, the local's president, is ineligible to run for delegate because Mr. Smith was out on sick leave for 26 weeks between January 1999 through July 1999. Mr. Quinones claims that this means that Mr. Smith did not work in the craft during this period. Mr. Quinones additionally states that Mr. Smith should be found ineligible to run for delegate because he did not attend general membership meetings and failed to attend executive board meetings during this period, and otherwise "effectively abandoned his job" as an officer of Local 115.

Mr. Smith does not contest that he took sick leave between January and July 1999, when he worked for the Local 115 Teamsters Health and Welfare Fund as an assistant to the trustees. During this time he continued to be an employee of Local 115 Teamsters Health and Welfare Fund, to get sick benefits from his job, and to pay timely dues to his local. On November 15, 1999, Mr. Smith requested a leave of absence from the Teamsters Local 115 Health and Welfare Fund Board of Trustees to work as the Teamsters Local 115 president. This was granted by the International Trustee Ed Keyser, Jr., and Employer Trustee Robert Bogain. Mr. Smith has established that he has been employed at the craft over the 24-month period.

Mr. Quinones' other claims, regarding Mr. Smith's alleged failure to attend membership and/or board meetings, or fulfill other local union officer responsibilities, simply do not constitute any of the eligibility criteria for delegates or alternate delegates contained in the Rules.

Therefore, the Election Administrator DENIES Mr. Quinones' protest as to Mr. Smith and finds Mr. Smith ELIGIBLE to run as a delegate.

III Gerard McNamara

Mr. Quinones protests Mr. McNamara's eligibility based on claims that Mr. McNamara, "like Mr. Smith,…also failed to perform his duties as Recording Secretary of Teamsters Union Local 115 from December 1997 until November 15, 1999, when the trusteeship was imposed," in that Mr. McNamara allegedly did not attend general membership meetings or executive board meetings. Mr. Quinones claims that the "Local 115 executive board…considered his lack of participation in the affairs of the Union and his failure to perform his responsibilities, absolute dereliction of duty." Mr. Quinones admits that he knows of no charges that have ever been brought by the local or the IBT against Mr. McNamara regarding any of these claims, or any punishments thereby imposed. Apparently, Mr. Quinones' claim that the "Local 115 executive board…considered [Mr. McNamara's alleged] failure to perform his responsibilities, absolute dereliction of duty" relates to a statement made by the former secretary-treasurer, John Morris (removed from office since the trusteeship), during an executive board meeting.

Mr. Quinones also claims that Mr. McNamara is currently being investigated by the Independent Review Board ("IRB") for "conduct that can only be described as corruption and racketeering during the time he was the appointed Trustee representative of Teamsters Local 107."

Mr. Quinones' claims with regard to Mr. McNamara's alleged failure to perform his duties as Recording Secretary of the local, even if true, would not constitute any violation of the Rules which would affect his eligibility to run as a delegate. As for Mr. Quinones' claims with regard to the IRB investigation, Mr. McNamara has submitted a letter dated January 25, 2001, from Mr. Carberry, Chief Investigator of the IRB. In this letter, Mr. Carberry states that as a matter of policy, the IRB does not comment on any matters which might be under investigation absent publicly filed charges. He further states that as of that date, the IRB had not recommended that any charges be filed against Mr. McNamara.

Therefore, the Election Administrator DENIES Mr. Quinones' protest as to Mr. McNamara and finds Mr. McNamara ELIGIBLE to run as a delegate.

IV Kevin Sullivan

Mr. Quinones protests Mr. Sullivan's eligibility on the basis that Sullivan has admitted, during a Fall 1999 negotiation meeting of certain Avis employees as well as during an early 2000 internal IBT hearing on the Local 115 trusteeship, that he had two felony convictions involving the sale of narcotics.

Under Article VI, Sec. 1(a)(3) of the Rules, Mr. Sullivan would be prohibited from running for delegate or alternate delegate if he would also be prohibited from holding office under Section 504 of the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"). See Chilcoat, E35 (January 26, 1996). Section 504 of the LMRDA provides, in relevant part:

No person who is or has been…convicted of, or served any part of a prison term resulting from his conviction of, robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault with grievous bodily injury, or…any felony involving abuse or misuse of such person's position or employment in a labor organization…, or conspiracy to commit any such crimes or attempt to commit any such crimes, or a crime in which any of the foregoing crimes is any element, shall serve or attempt to serve-

 …(2) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, employee, or representative in any capacity of any labor organization…

 during or for the period of thirteen years after such conviction or after the end of such imprisonment, whichever is later, unless the sentencing court on the motion of the person convicted sets a lesser period of at least three years after such conviction or after the end of such imprisonment, whichever is later, or unless prior to the end of such period, in the case of a person so convicted or imprisoned,…if the offense is a Federal offense, the sentencing judge or, if the offense is a State or local offense, the United States district court for the district in which the offense was committed, pursuant to sentencing guidelines and policy statements under section 994(a) of Title 28, determines that such person's service in any capacity referred to in clauses (1) through (5) would not be contrary to the purposes of this chapter. Prior to making any such determination the court shall hold a hearing and shall give notice of such proceeding by certified mail to the Secretary of Labor and to State, county, and Federal prosecuting officials in the jurisdiction or jurisdictions in which such person was convicted. The court's determination in any such proceeding shall be final. No person shall knowingly hire, retain, employ, or otherwise place any other person to serve in any capacity in violation of this subsection.

In a January 30, 2001 conversation with Election Administrator representative Lois Tuttle, Mr. Sullivan admitted that he had pleaded guilty to a felony narcotics charge (conspiracy to distribute drugs) in federal court in Philadelphia, PA in 1994, as a result of which he was given probation. Mr. Sullivan stated that in 1988, he pleaded guilty in Philadelphia City Court to a felony count of attempted rape, for which he served six years of probation.

Because Mr. Sullivan has not supplied this office with court records, it is currently unclear as to whether his attempted rape conviction occurred within the thirteen-year time period of Section 504 of the LMRDA. However, he has admitted to a felony narcotics conviction that does come within the thirteen-year period and would bar him from holding office under Section 504 of the LMRDA. Therefore, the Election Administrator GRANTS Mr. Quinones' protest as to Mr. Sullivan and finds Mr. Sullivan INELIGIBLE to run as a delegate.

V James Ayling

Mr. Quinones protests Mr. Ayling's eligibility on the basis that his seconder, Edward Januszka, was ineligible to second as Mr. Januszka was not a member of the local over the 24-month continuous period.

According to our office's investigation, Mr. Quinones is correct in his assertion that Mr. Januszka was not a member of Local 115 over the last 24 month prior to the nomination meeting date. However, the question of whether or not Mr. Januszka was eligible to nominate turns not on whether Mr. Januszka can establish a period of 24-months continous eligibility, but rather on whether at the time of the nomination meeting, Mr. Januszka was a Local 115 member in good standing, with his dues paid through the month prior to the nomination meeting (in this case, December 2000). See Article II, Sec. 5(h) of the Rules.

Our investigation revealed that Mr. Januszka was the only member to second Mr. Ayling's nomination. Mr. Januszka, a former member of Local 628, began working at University of Pennsylvania, a Local 115 shop, in May 2000. On October 3, 2000, local union records show that Mr. Januszka signed a checkoff card authorizing the University of Pennsylvania to transmit his dues directly to Local 115. He also paid one month's dues and a transfer fee of 50 cents to transfer from Local 628 to Local 115 in early October, 2000. By letter dated October 5, 2000, the local transmitted Mr. Januszka's checkoff card to his employer along with a request that his employer not deduct his initiation fee. According to the TITAN record, on or about December 13, 2000, the local received his employer's first dues payment of $34 and applied it to payment for the month of June 2000. In December 2000, the University of Pennsylvania sent the local a second checkoff payment of $34, which the local received on or about January 11, 2001 and applied to payment of Mr. Januszka's dues for the month of July 2000.

Mr. Januszka claims that he first signed a checkoff authorization and other documents around June 2000, shortly after beginning work with the University of Pennsylvania. He says that he discussed his former membership at Local 628 with a University of Pennsylvania shop steward, possibly named Tom, who provided him with a checkoff authorization form and other paperwork for him to sign. Mr. Januszka states that he promptly turned the paperwork in to the steward, who told him that he would turn the paperwork into the union, and that he assumed that the steward had done so. Mr. Januszka noticed that his dues were not checked off in July or August 2000, but that he assumed that perhaps it took a while for his checkoff authorization and other paperwork to take effect. Mr. Januszka states that after a while, it's possible that this fact "slipped his mind."

Mr. Januszka further states that he came into the local in early October 2000 because of a grievance against University of Pennsylvania involving his work status. He states that during this grievance, he spoke to the local's president, Jim Smith. In addition to his grievance, he spoke to Mr. Smith about the fact that his dues had not been deducted from his paycheck. Mr. Januszka states that Mr. Smith provided him with new paperwork involving the checkoff authorization. At that point, he signed the new checkoff authorization, gave Local 115 a check for one month's dues plus 50 cents to transfer from his last union, and filled out paperwork relating to the transfer. Mr. Januszka claims that he also spoke to someone from the dues office about whether he needed to do anything else, and was told that he would be contacted if he did.

Mr. Smith verified that, in fact, on a number of occasions different members had complained that a number of stewards at the University of Pennsylvania had not been good at fulfilling responsibilities such as turning in members' paperwork to the local. Furthermore, in June 2000 University of Pennsylvania did have a shop steward named Tom Jones working the same shift as Mr. Januszka. Mr. Jones is no longer in the position of steward. Additionally, Mr. Smith states that he does remember dealing with Mr. Januszka about a grievance in early October 2000.

Thus, the evidence does support Mr. Januszka's claim that any late checkoffs of his dues were not his fault, but the local's. The local admittedly did not send him any notices of his employer's failure to transmit dues or of the delinquency that resulted. Therefore, in accordance with Article X, Sec. 5(c) of the IBT Constitution, he cannot be held accountable for that delinquency.

Therefore, the Election Administrator DENIES Mr. Quinones' protest as to Mr. Ayling's eligibility based on his seconder's eligibility, and finds Mr. Ayling ELIGIBLE to run as a delegate.

VI Charles Argeros

Mr. Quinones protests Mr. Argeros' eligibility on the basis that his nominator, Thomas Campion, was ineligible to nominate Mr. Argeros because Mr. Campion was not a member of Local 115 over the 24-month continous period.

As in Mr. Januszka's case, Mr. Quinones is also correct in that Mr. Campion was not a member of Local 115 over the last 24 months prior to the nomination meeting date. However, Mr. Quinones has again stated the wrong standard for determining nominator and/or seconder eligibility. In order for Mr. Campion to have been eligible as Mr. Argeros' nominator, Mr. Campion would only have needed to be a Local 115 member in good standing, with his dues paid through the month of December 2000. Article II, Sec. 5(h) of the Rules.

The TITAN record shows that Mr. Campion has been a Local 115 member in good standing since January 2000. As of January 7, 2001, the date of the nomination meeting, he was a member in good standing, with his dues paid through the month of December 2000. He was therefore eligible to nominate Mr. Campion at the nomination meeting.

Therefore, the Election Administrator DENIES Mr. Quinones' protest as to Mr. Argeros' eligibility based on his nominator's eligibility, and finds Mr. Argeros ELIGIBLE to run as an alternate delegate.

VII Jerome "Butch" Lane

Mr. Quinones' claims with regard to Mr. Lane's alleged failure to perform his duties as Recording Secretary of the local, even if true, would not constitute any violation of the Rules which would affect his eligibility to run as a delegate.

Therefore, the Election Administrator DENIES Mr. Quinones' protest as to Mr. Lane and finds Mr. Lane ELIGIBLE to run as a delegate.

Any interested party not satisfied with these determinations 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, shall specify the basis for the appeal, and shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon the parties listed above, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 Fifteenth Street, N.W., 10^th Floor, Washington, D.C. 20005, Facsimile (202) 454-1501, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

William B. Kane, Mideast Area Regional Director

DISTRIBUTION LIST (BY UPS NEXT DAY AIR UNLESS OTHERWISE SPECIFIED):