Protest Decisions

March 4, 1996

VIA UPS OVERNIGHT

Van Beane

March 4, 1996

Page 1

Van Beane

920 Mission Road #3

South San Francisco, CA 94080

Jerry Buckley

228 Seaside Drive

Pacifica, CA 94044

Paul Faaola

40 Britton Street

San Francisco, CA 94134

Derek Brown

619 Springfield Way

Mill Valley, CA 94941

William Cromartie

Post Office Box 103

Daly City, CA 94016

Howard King

3706 Georgia Street

Vallejo, CA 94591

Van Beane

March 4, 1996

Page 1

Re:  Election Office Case No. E-095-LU85-EOH

Gentlepersons:

Local Union 85's nomination meeting was held on February 8, 1996.  At the meeting, Derek Brown, Paul Faaola were nominated to run for delegate to the International convention. Jerry Buckley and Howard King were nominated to run for alternate delegate.  William Cromartie and James Robinson nominated Mr. Brown and Mr. Faaola.  By letter received by the Election Officer on February 9, 1996, Van Beane protests the eligibility of these individuals, with the exception of Mr. Robinson.  Specifically, he alleges that these candidates and Mr. Cromartie failed to maintain good standing prior to the nominations meeting as required by the Rules for the IBT 1995-1996 International Union Delegate and Officer Election (“Rules”).

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:

Van Beane

March 4, 1996

Page 1

(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 in pertinent part:

[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.

Article X, Section 5(c) also requires that members pay fines and assessments within three months of when they are levied or the member will be automatically suspended.  The Election Officer has interpreted this section to indicate that, if a member, duly notified of his or her arrearage, fails to remit fines or assessments within three months, he or she loses good standing status.  See Tarantino, E-101-LU216-EOH, et al. (February 28, 1996), appeal pending.

Eligibility of Jerry M. Buckley

According to the investigation, Mr. Buckley’s dues were paid in timely manner during the relevant 24 month period.  His record indicates two fines, of $60 each, which were applied because he failed to report for picket duty.  Local Union 85 has a program whereby all members of the local union are assigned a date to report for picket duty once a year by the local union.  Members are notified in writing as to what date they have been assigned.  If a member fails to appear for picket duty, he or she is notified in writing that the $60 fine must be paid.

As part of Mr. Buckley’s checkoff plan, the local union billed Mr. Buckley’s employer if he incurred a picket fine.  At the request of the local union, this money was then withheld from Mr. Buckley’s pay and remitted to the local union in monthly installments of $15 until the balance of the fine is paid. 

Van Beane

March 4, 1996

Page 1

Mr. Buckley was first fined for failure to report for picket duty on June 9, 1993.  This fine was not paid until October 4, 1994, but, since it was incurred outside the 24 consecutive months prior to Mr. Buckley’s nomination, the delay in payment does not affect Mr. Buckley’s eligibility.[1]

Of more relevance to this analysis is the fine Mr. Buckley was charged when he failed to appear for picket duty on September 12, 1994.  On September 16, the local union sent Mr. Buckley a notice that he had been fined $60, and owed the local union $120 because the fine he incurred in 1993 that had not been paid.  On October 4, 1994, Mr. Buckley paid $60 which covered the 1993 fine.  At that time, he still owed the local $60 for the fine incurred for 1994 picket duty, which he reasonably believed would be withheld from his earnings under his checkoff agreement.

The local union billed Mr. Buckley’s employer for the first monthly payment on his fine in October 1994.  The employer withheld $15 from Mr. Buckley’s earnings that month and remitted that amount to the local union on November 9, 1994.  Thereafter, Mr. Buckley’s employer withheld $15 a month for three consecutive months and remitted these payments to the local union on December 5, 1994, December 22, 1994, and January 18, 1995.  Mr. Buckley had sufficient earnings from which both his dues and fine payments could be deducted in each month from October 1994 through January 1995.

This record indicates that Mr. Buckley paid his picket duty fine in accordance with his local union’s policy and his checkoff agreement.  Article X, Section 5(c) of the IBT Constitution states that any member who is three months in arrears in the payment of fines shall be automatically suspended from union membership.  While the balance of Mr. Buckley’s fine was not paid in full in the three months following the levying of the fine, Mr. Buckley was paying the fine on an installment plan approved and implemented by his local union.  These payments began before three months had elapsed and were in accordance with requests made by the local union to Mr. Buckley’s employer.  As a result, the Election Officer finds Mr. Buckley had no “arrearage” in fines which would trigger the automatic suspension provision of the Constitution.

Therefore, Mr. Buckley maintained 24 consecutive months of continuous good standing prior to his nomination.  Accordingly, it is the determination of the Election Officer that Mr. Buckley is eligible to run for delegate or alternate delegate.  He was also eligible to nominate or second a nomination at Local Union 85's nominations meeting.

Van Beane

March 4, 1996

Page 1

Eligibility of Paul Faaola

An examination of the TITAN record reveals that Mr. Faaola paid his dues late for every month during the relevant 24 month period except February 1994.  During these months, he was fined seventeen times for failure to timely pay his dues, and, on October 3, 1994, he was suspended from union membership for failure to pay his dues.  He returned from suspension on November 30, 1994 after being required to pay $238 in back dues.

From this record, it is clear that Mr. Faaola failed to maintain even a semblance of the required 24 consecutive months of good standing prior to his nomination.  Accordingly, it is the determination of the Election Officer that Mr. Faaola is not eligible to run for delegate to the International convention.[2]

Eligibility of Derek Brown

Mr. Brown is employed by Roadway Express.  He is on dues checkoff but sometimes pays his dues in cash.[3]   Mr. Brown’s  TITAN record indicates late dues payments for June 1994 and October 1994.  Mr. Brown’s June 1994 dues were posted to the system on July 1, and his October 1994 dues were posted on November 2, 1994. 

The investigation revealed that Mr. Brown had sufficient earnings from which dues could have been deducted for the months of June 1994 and October 1994.  Moreover, when Mr. Brown observed that no dues had been deducted from his paycheck for the month of October 1994, he paid October’s dues in cash.  They were posted by the local union on November 2, 1994.

Article X, Section 5(c) of the International constitution states that a member on dues checkoff does not lose good standing if his or her employer fails to remit in a timely manner dues for a month in which the employee had sufficient earnings from which dues could be deducted. 

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

Van Beane

March 4, 1996

Page 1

Eligibility of Bill Cromartie to nominate

According to the nominations meeting report, Mr. Cromartie and James Robinson nominated Messrs. Brown and Faaola.   The record indicates that Mr. Cromartie was not the sole nominator or seconder of any candidate.  The Rules at Article II, Section 5(e) require that a candidate need only be nominated by one member in good standing and seconded by one other member in good standing.  Thus, a finding regarding Mr. Faaola’s eligibility in the present protest would have no effect on the validity of any nomination in which he participated.  Mr. Robinson is not a party to this protest.

Eligibility of Howard King

Mr. King’s TITAN report indicates that his dues were posted late in February and March 1994.  The investigation revealed that during those months Mr. King was a checkoff dues payer, who had sufficient earnings from which the dues could be deducted. 

In May 1994, Mr. King became a cash dues payer.  In June 1995, Mr. King cash paid his dues.  He tendered $40 and the TITAN record indicated that Mr. King was paid through June 1995.  Later that same month, Local Union 85 increased Mr. King’s dues rate to $41 a month.  In July 1995, Mr. King cash paid his dues in the amount of $40.00.  Because of the dues rate increase, Mr. King’s dues payments for June and July 1995 were insufficient.

The IBT has advised the Election Officer that it is the International union’s policy not to deprive a cash-paying member of good standing for the member’s failure to pay an increase in dues unless the member received written notification of the increase.  The Election Officer finds this to be a sound policy and, in the situation of a dues increase for a cash-paying member, will not deprive a member of good standing without evidence that written notification of the dues increase was provided to the member. 

The investigation revealed that Local 85 issued a notice of dues increase on June 9. 1995. The notice advised that any member having already tendered dues at the rate of $40.00 should remit an additional payment of $1.  Mr. King contends that he never received Local 85's notice of dues increase.  Instead, Mr. King states that he was not notified of the dues increase until he received his receipt for the payment of July 1995 dues.  The receipt for payment of July’s dues is dated July 6, 1995. 

Mr. King contends that a note was attached to the receipt he received in mid-July.  According to Mr. King, the note requested that he pay the arrearage that resulted from the dues increase with his next dues payment.  Mr. King could not produce this note. The local union has supplied conflicting answers as to whether such a note was attached to the receipt.  One agent of the local union states that such a note, if attached, would have instructed the member to pay the delinquency by the end of the month in which the note had been mailed.   Another agent, who is chiefly responsible for receipt mailing, states that she may have requested in the note that Mr. King “include the additional $1.00 with [his] next dues remittance.”

Van Beane

March 4, 1996

Page 1

Mr. King paid his August 1995 dues by check in early August 1995.   He included with this payment $2 to settle the balance on his account.  The local union received this payment on August 8, 1995.

Based on these facts, the Election Officer finds Mr. King’s assertion that he did not receive the June 1995 notice of dues increase credible.  The Election Officer further finds that the local union sent Mr. King a receipt in July which was accompanied by a note that directed him to pay his arrearage with his next monthly payment.  The TITAN record indicates that Mr. King conscientiously paid his dues in a timely manner in all other relevant months.  After he received his receipt with the attached note, he remitted the delinquent funds with his next dues payment.  Given his record, it seems unlikely that Mr. King would not have paid his new dues rate when he sent in his July 1995 payment if he had previously received notice that his rate had changed.  After he received the July notice, he sent a payment of $43 to the local union.

The Rules and the IBT Constitution are silent on the issue of when a cash-paying member must begin paying a dues increase after they have been notified.  In the absence of such guidance, the Election Officer adopts a reasonableness test.  It has already been determined that Mr. King was not given sufficient notice of his dues increase until he received the July 6, 1995 receipt.  Thereupon, he paid he paid his arrearage and dues at the increased rate the next time he was required to pay his dues.  Because no unreasonable delay between notice and payment occurred, Mr. King does not lose his good standing status for failure to pay his dues increase in June or July 1995.

Under these circumstances, it is the determination of the Election Officer that Mr. King is eligible to run for delegate or alternate delegate to the International convention.

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

Van Beane

March 4, 1996

Page 1

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

Matthew Ross, Regional Coordinator