Protest Decisions

February 20, 1996

VIA UPS OVERNIGHT

Kimberly Ann Funk

February 20, 1996

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Kimberly Ann Funk

4832 N. 88th Avenue

Phoenix, AZ 85037

Jo Carney

11227 N. 52nd Avenue

Glendale, AZ 85304

Jacqueline Edgmon

1512 W. Garden Street

Mesa, AZ 85201

Virgil Hunt

8821 W. Roanoke

Phoenix, AZ 85037

Gene Leggitt

3016 N. 35th Drive

Phoenix, AZ 85019

Gil Torres

3817 W. Lewis

Phoenix, AZ 85009

Robert Justus

262 N. Cholla

Mesa, AZ 85201

Keith Lamott

1810 W. Mountain Oak

Tucson, AZ 85746

Richard Esquivel, Secretary-Treasurer

Teamsters Local Union 104

1450 South 27th Avenue

Phoenix, AZ 85009

Kimberly Ann Funk

February 20, 1996

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Re:  Election Office Case No. E-086-LU104-EOH

Gentlepersons:

Kimberly Ann Funk

February 20, 1996

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Local Union 104’s nomination meeting was held on February 3, 1996.  At the meeting, Robert N. Justus, J. L. Carney, Jacqueline Edgmon, and Gene Leggitt were nominated to run for delegate to the International convention.  At the same meeting, Gilbert Torres and Virgil D. Hunt were nominated to run as alternate delegates.  The Election Officer’s representative at the meeting refused to accept Keith Lamott’s written acceptance of nomination to run for delegate because the acceptance was not signed.  By letter received by the Election Officer on February 6, 1996, Kimberly Ann Funk protests the eligibility of these individuals.  Specifically, she alleges that Messrs. Carney, Leggitt, and Justus, have failed to maintain

24 consecutive months’ good standing prior to their nomination and that Ms. Edgmon and Messrs. Torres and Hunt have not been employed at a craft under the jurisdiction of the local union for 24 consecutive months prior to their nomination, as required by the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”).  In the same letter, Ms. Funk asks that the Election Officer uphold her representative’s refusal to accept Mr. Lamott’s written nomination acceptance.

Article VII, 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.

In addition, Article X, Section 5(c) of the IBT Constitution states:

[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.         

Eligibility of J. L. Carney

The investigation disclosed that Mr. Carney, who had been a checkoff dues payer, was terminated from his employment with Willig Freight Lines (“Willig”) on April 10, 1994. 

Mr. Carney filed a charge with the National Labor Relations Board (“NLRB”) concerning his discharge.  Mr. Carney’s dues were timely paid, pursuant to his check-off authorization through April 1994.  Mr. Carney paid his May 1994 dues in cash.  In mid-June 1994,

Kimberly Ann Funk

February 20, 1996

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Mr. Carney was reinstated, but his June dues were not checked off or remitted to the local union until July.  Mr. Carney’s employer confirms that he had sufficient earnings in June 1994 from which dues could have been deducted.  Since Mr. Carney’s dismissal and reinstatement should not have interfered with his existing checkoff authorization, the late payment reflected on Mr. Carney’s TITAN record is the result of employer error for which Mr. Carney will not be penalized.[1]

Accordingly, it is the determination of the Election Officer that Mr. Carney is eligible to run for delegate to the International convention.

Eligibility of Gene Leggitt

Mr. Leggitt was terminated from his position with Willig on June 12, 1995. 

Mr. Leggitt admits that ever since his termination he has been working for an “owner-operator non-teamster employer.”

Article VII, Section 2(b) of the Rules provides:

The active employment at the craft requirement may be excused by unemployment if, for the period of unemployment, the member was actively seeking and available for employment in the craft and not working outside the craft during such period of unemployment, or by active pursuit of an unresolved grievance or other legal action challenging suspension or discharge.

As a result of Mr. Leggitt’s non-union employment, he does not satisfy the Rules requirement that he be employed in a craft under the jurisdiction of his local union for

24 consecutive months prior to his nomination.

Accordingly, it is the determination of the Election Officer that Mr. Leggitt is not eligible to run for delegate to the International convention.

Eligibility of Robert Justus

In response to a pre-nomination request for eligibility verification made on

November 2, 1995, the Election Officer found Mr. Justus to be eligible to run for delegate through October 1995. 

Kimberly Ann Funk

February 20, 1996

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The investigation revealed that Mr. Justus, who was employed with Roadway Express, Inc. (“Roadway”) signed a dues checkoff authorization in October 1993.  According to a Roadway representative, the employer failed to process this authorization until June 1994.  As a result, Roadway failed to checkoff Mr. Justus’ dues until that time.  Pre-bills issued by the local union to the employer confirm that Mr. Justus was considered a checkoff employee by the local union during this period, but the local union never notified Mr. Justus that his dues were not being paid by his employer until he was informed verbally by Local Union 104 Business Agent Bob Shetler on March 29, 1994. 

On that same day, Mr. Justus paid two months’ dues and a strike assessment and signed a new checkoff authorization card.  This payment covered his dues for January and February 1994.  On April 28, 1994, exactly 30 days after he received verbal notice from

Mr. Shetler, Mr. Justus paid his March 1994 dues.  Roadway again failed to remit Mr. Justus’ April and May dues.  There is no evidence that the local union informed Mr. Justus of this fact.

On June 7, 1994, Roadway remitted Mr. Justus’ April and May 1994 dues to the local union.  On July 5, 1994, the employer remitted Mr. Justus’ dues for June and July 1994.  At that time, Mr. Justus’ account with the local union became current, and it has remained so to the present.

The evidence indicates that the late payments reflected on Mr. Justus’ TITAN record are the result of Roadway’s failure to process his checkoff authorization.  In the absence of notification from the local union, a member is under no obligation to confirm that his dues are being checked off or to make payments his employer has missed.  When Mr. Justus received such verbal notification, he immediately took steps to pay his dues and brought his account current within 30 days.[2]  On the same day, he signed yet another checkoff authorization.  Even then, his employer failed to remit his dues in a timely manner until July 1994.  Since the investigation disclosed that Mr. Justus had sufficient earnings from which his dues could have been deducted in each month for which his dues were not posted timely, he does not lose good standing because of employer error.

Accordingly, it is the determination of the Election Officer that Mr. Justus is eligible to run for delegate to the International convention.  

Eligibility of Jacqueline Edgmon

In response to a pre-nomination request for eligibility verification made on

November 27, 1995, the Election Officer held Ms. Edgmon to be eligible to run for delegate through November 28,1995.

The protester alleges that Ms. Edgmon has not worked in a craft under the jurisdiction of the local union for 24 consecutive months prior to her nomination as required by the Rules. 

Kimberly Ann Funk

February 20, 1996

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Ms. Edgmon responds that she is currently a casual employee with CF Motorfreight (“CF”) in a position under the jurisdiction of the local union.  She also admits, however, that she is currently employed full time by the Operating Engineers Local Union 428, AFL-CIO. 

Article VII, Section 2(b) of the Rules, supra., intends that a member available for employment but unable to find it should not be rendered ineligible.  In the present instance, Ms. Edgmon actively sought employment in the local union’s jurisdiction after her layoff on December 28, 1994.  She eventually accepted a position as a casual for CF.  She is still employed in this position.  Because she was unable to secure full-time employment under the local union’s jurisdiction, she accepted a job with Operating Engineers Local Union 428. 

Ms. Edgmon is currently an employee under the jurisdiction of Local Union 104.  During her period of unemployment, she was actively seeking employment under the jurisdiction of Local Union 104 and is thus protected by Article VII, Section 2(b) of the Rules.  Regardless of any other job she might have, she has worked or actively sought employment at a relevant craft for the 24 consecutive months prior to her nomination.

Accordingly, it is the determination of the Election Officer that Ms. Edgmon is eligible to run for delegate to the International convention.

Eligibility of Gilbert Torres

The investigation revealed that Mr. Torres is currently not employed under the jurisdiction of the local union.  He attests, however, that he is currently seeking active employment as a movie wrangler/studio driver and is on the local union’s movie wrangler/studio driver list.  He does state that he has worked in non-union jobs since he became unable to find work in his craft.  According to Mr. Torres, these jobs have been part time and/or temporary.  The TITAN record indicates Mr. Torres’ dues have been paid timely for 24 consecutive months.

The Election Officer will not penalize members who are unable to find work in their craft who take temporary or part-time employment outside the craft while actively seeking and available for union employment.  Mr. Torres’ presence on the movie wrangler list demonstrates his willingness and intention to take employment in that craft should it become available.  As a result, Mr. Torres is protected by the exception in Article VII, Section 2(b) of the Rules.

Accordingly, it is the determination of the Election Officer that Mr. Torres is eligible to run for alternate delegate to the International convention.

Eligibility of Virgil Hunt

The investigation revealed that Mr. Hunt is currently employed as a casual worker at CF.  Further, Mr. Hunt states that he, like Mr. Torres, is on the movie wrangler/studio driver list and is available for employment in that craft.  The TITAN record indicates that Mr. Hunt has paid his dues in a timely fashion for the 24 relevant months.

Kimberly Ann Funk

February 20, 1996

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For the same reasons enunciated above for both Mr. Torres and Ms. Edgmon,

Mr. Hunt does not violate the requirement that he have 24 consecutive months’ work at a craft under the jurisdiction of the local union.

Accordingly, it is the determination of the Election Officer that Mr. Hunt is eligible to run for alternate delegate to the International convention.

Nomination of Keith Lamott

The protester requests that the decision to refuse to accept Mr. Lamott’s written nomination acceptance not be overturned.  There has been no protest of the rejection of the Election Officer’s representative of Mr. Lamott’s written nomination.  Mr. Lamott is not considered a nominated candidate in this election.

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 Officer 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 Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Barbara Zack Quindel

Election Officer

cc:              Kenneth Conboy, Election Appeals Master

Jonathan Wilderman, Regional Coordinator

Kimberly Ann Funk

February 20, 1996

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