Protest Decisions

              March 8, 1996

VIA UPS OVERNIGHT

Mark Liss

March 8, 1996

Page 1

Mark Liss

321 W. 44th Street

New York, NY 10036

Edward Ward

254 Jefferson Street

Franklin Square, NY 11010

Matt Eannuzzi

70 Woodview Lane

Centerreach, NY 11720

Steve Weiss

264 Roosevelt Avenue

Freeport, NY 11520

Ed Nunez

37-35 85th Street, #23

Jackson Heights, NY 11372

Theodore Sadowski, Jr.

22 Cobble Lane

Levittown, NY 11756

Anthony Mungin

2568 Western Avenue

Building 6, Apt. 5T

Altamonte, NY 12009

Randy Paul

765 N. Broadway #11D

Hastings, NY 10706

Gene Moriarty, Trustee

Teamsters Local Union 966

321 W. 44th Street, 10th Floor

New York, NY 10036

Mark Liss

March 8, 1996

Page 1

Re:  Election Office Case No. E-103-LU966-EOH

Gentlemen:

At Local Union 966’s nomination meeting held on February 13, 1996, Matthew Eannuzzi, Theodore Sadowski, Anthony Mungin, and Randy Paul were nominated to run for delegate to the International convention.  Mr. Eannuzzi was nominated by Edward Ward, and his nomination was seconded by Steven Weiss.  Mr. Sadowski was nominated by Randy Paul, and his nomination was seconded by Edmundo Nunez.  Mr. Mungin was nominated by

Mark Liss

March 8, 1996

Page 1

Mr. Sadowski, and his nomination was seconded by Mr. Paul.  At the same meeting, Steven Weiss and Edmundo Nunez were nominated to run for alternate delegate.  Mr. Weiss was nominated by Mr. Ward, and his nomination was seconded by Mr. Eannuzzi.  Mr. Nunez was nominated by Mr. Sadowski, and his nomination was seconded by Dominick Martucci, who is not a party to this protest.

By letter received by the Election Officer on February 15, 1996, Mark Liss protests the eligibility of Messrs. Eannuzzi, Sadowski, Mungin, Ward, Weiss, Paul, and Nunez to run for delegate or alternate delegate and to nominate or second a nomination to run for delegate or alternate delegate.  Mr. Liss makes specific allegations concerning each individual which will be addressed below.

Article VII, Section 1(a) of the Rules for the IBT 1995-1996 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, 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 II, Section 5(e) of the Rules requires that, in order to be valid, nominations and seconds must be made by members in good standing at the time of the nomination meeting.

Mark Liss

March 8, 1996

Page 1

Eligibility of Edward Ward

According to the nomination meeting report, Mr. Ward was not nominated to run for delegate or alternate delegate.  He did, however, nominate Mr. Eannuzzi to run for delegate and Mr. Weiss to run for alternate delegate.  The analysis of Mr. Ward’s eligibility, therefore, will be restricted to a determination of Mr. Ward’s good standing at the time of Local

Union 966’s nomination meeting.

An examination of Mr. Ward’s TITAN record reveals that his January 1996 dues were paid by check-off in a timely manner.  The record indicates that Mr. Ward had no outstanding arrearages at that time.  As a result, Mr. Ward was in good standing at the time of the nomination meeting.

Accordingly, it is the determination of the Election Officer that Mr. Ward was eligible to nominate Mr. Eannuzzi and Mr. Weiss.

Eligibility of Steven Weiss

The protester alleges that Mr. Weiss is not eligible to run for alternate delegate or to second the nomination of Mr. Eannuzzi because he is an employer owner/operator, and thus barred from local union membership.

Article II, Section 2 of the IBT Constitution states, in pertinent part:

(b) Persons who own, lease or operate a team or vehicle and/or perform any other work may be eligible for membership in this International Union.  If, however, any Local Union can prove to the satisfaction of the General President that the membership of such individuals would be detrimental to the welfare of the Local Union, it may present such facts to the General President for authority to refuse or accept such persons as members.  The General President shall consider all facts and circumstances and render a decision in the matter, subject to appeal to the General Executive Board, which shall be binding on the local union.

(c) The foregoing provision shall apply with equal force to so-called “vendors” and “owner equipment drivers.”  A “vendor” is a person who purchases products and sells the same on his own behalf.

Mark Liss

March 8, 1996

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The investigation revealed that Mr. Weiss is co-owner of a marine supply business that, because of its affiliation with an organization known as Nassau Suffolk Consultants Corporation (“Nassau”), is a party to a collective bargaining agreement with Local Union 699.  Mr. Weiss states that he and his partner have no subordinate employees.  Under operation of the collective bargaining agreement, vendors and owner/operators affiliated with Nassau may become dues-paying union members and make contributions to, and benefit from, the local union’s pension and health funds.  Mr. Weiss states that he has been such a member for more than seven years.

The investigation also revealed, however, that Nassau’s collective bargaining agreement with the local union expired on December 31, 1995.  The local union has refused to re-negotiate the contract because it suspects that some Nassau members are employers who are not eligible for union membership.  As a result of the lapse of the contract, Nassau members no longer fall under the jurisdiction of Local Union 966.  Mr. Weiss, therefore, was not working in a craft under the jurisdiction of the local union in January 1996, as required by the Rules.

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

The TITAN record, however, reflects that Mr. Weiss’ January 1996 dues were accepted and posted by the local union.  Even though Mr. Weiss was not employed at a craft under the jurisdiction of the local at the time of the nomination meeting, he was a paid member in good standing.

Accordingly, it is the determination of the Election Officer that Mr. Weiss was eligible to nominate or second the nominations of candidates to run for delegate or alternate delegate to the International convention.

Eligibility of Matthew Eannuzzi

Mr. Liss alleges that Mr. Eannuzzi is not eligible because he paid his dues late for March 1994 and September 1995.[1]  The TITAN record indicates that Mr. Eannuzzi’s check-off dues for March and May 1994 and September 1995 were posted late to the system. 

The investigation disclosed that Mr. Eannuzzi was employed by the local union as a business agent during both months in 1994 for which his dues were not timely posted.  The local union has confirmed that Mr. Eannuzzi had sufficient earnings from which dues could be deducted in both months.  The late TITAN posting is, therefore, the result of local union error.  Likewise, Mr. Eannuzzi provided the Election Officer with proof that he had sufficient earnings in September 1995 from which his dues could have been deducted.  As a result,

Mr. Eannuzzi will not be penalized for late postings to TITAN.

Accordingly, it is the determination of the Election Officer that Mr. Eannuzzi is eligible to run for delegate or alternate delegate and to nominate or second nominations for delegate or alternate delegate to the International convention.

Mark Liss

March 8, 1996

Page 1

Eligibility of Edmundo Nunez

The protester alleges that Mr. Nunez failed to maintain the good standing required by the Rules because he paid his dues late in July, September, October, November, and December 1995, and January 1996.  Mr. Nunez’s TITAN record reflects that these dues payments were posted late on the system.

The investigation disclosed that Mr. Nunez, who is a shop steward, was on a valid check-off plan with his employer, National Reprographics (“National”) until February 1995.  In March 1995, the local union’s contract with National expired, and the employer ceased to check off and remit employees’ dues.  At that time, Mr. Nunez was instructed by the local union to collect dues from members at his work site and remit these payments to the local union’s business agent. 

It was not Mr. Nunez’s practice to call the local union’s business agent to pick up the dues until he had collected dues from a minimum number of members in his shop.  Because he had trouble getting these payments, Mr. Nunez states that dues money would collect in his locker “for months” before he would contact the business agent.

Mr. Nunez defends this practice by contending that no one ever explained to him that his dues had to be paid before the end of the month in which they were due or that he had to timely remit his dues in order to remain eligible.  This argument is without merit.  The Election Officer has expended a large amount of effort to inform members of their rights and obligations under the Rules.  There is also evidence that the officers of Local Union 966 made similar attempts to inform the membership.  Mr. Nunez cannot now claim he was ignorant of the eligibility requirements simply because he failed or refused to avail himself of the information on the subject provided for his instruction.

Accordingly, it is the determination of the Election Officer that Mr. Nunez is not eligible to run for delegate or alternate delegate or to nominate or second nominations for delegate or alternate delegate to the International convention.             

Eligibility of Randy Paul

The protester alleges that Mr. Paul is not eligible to run, nominate, or second nominations because he is a supervisor.

The investigation reveals that Mr. Paul is a part-time employee of Local Union 966 where he works as an auditor.  According to Mr. Paul, roughly 20 percent of his time is spent working for the local union.  Mr. Paul spends the majority of his time working as the assistant fund manager of the local union’s health and pension funds.[2] 

Mark Liss

March 8, 1996

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Each fund is overseen by a board which consists of two trustees from the local union, two employer trustees, and the fund manager.  Employees of the funds are not parties to a collective bargaining agreement with Local Union 966, but are allowed to pay dues and participate in union activities.

The composition of the funds’ directors indicate that the funds are not mere extensions of Local Union 966.  The funds’ employer trustees have oversight powers which demonstrate that the funds are organizations separate from the local union itself.  As a result, employees of the funds are not employees of the local union.

The Rules require that potential candidates have 24 consecutive months of employment at a craft “within the jurisdiction of the Local Union” prior to the nomination.  Article VII, Section 1(a)(2).  Members satisfy this requirement by being employed full-time with the local union or by working for an employer who has a collective bargaining agreement with the local union.  According to Mr. Paul’s statement, the funds have never had a collective bargaining agreement with the local union.  In addition, Mr. Paul is not a full-time employee of the local union.  As a result, Mr. Paul has not been employed at a craft under the jurisdiction of the local union, as required by the Rules.

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

Mr. Paul was, however, in good standing at the time of the nomination meeting.  Accordingly, it is the determination of the Election Officer that Mr. Paul was eligible to nominate or second nominations for delegate or alternate delegate at the local union’s nomination meeting.

Eligibility of Theodore Sadowski

The protester alleges that Mr. Sadowski paid his dues late for several months during the relevant 24-month period.  An analysis of Mr. Sadowski’s dues payment is, however, unnecessary.  Mr. Sadowski’s nomination was seconded by Mr. Nunez who was not eligible to do so at the time.  As a result, Mr. Sadowski’s nomination is invalid.

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

Eligibility of Anthony Mungin

The protester alleges that Mr. Mungin’s dues were paid late for all of 1994 and 1995.  Mr. Liss also alleges that Mr. Mungin’s dues for January 1996 have yet to be paid.  The TITAN record indicates late postings for February 1994 through December 1995.  As of the issuance of this decision, Mr. Mungin’s January dues have not yet been posted.

Mark Liss

March 8, 1996

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The pervasive reflection of late payments on the TITAN record appears to result from a payment deficiency which occurred before the beginning of the relevant 24-month period.  As a result, subsequent payment in the relevant period will be considered by the Election Officer as applying to the month in which they were paid, not the month to which they were applied.  See Rabine, E-025-LU763-EOH (January 22, 1996).  Thus, Mr. Mungin had sufficient dues payments in all but four months in 1995 and January 1996.  Either Mr. Mungin or his employer has provided evidence that Mr. Mungin had earnings from which dues could have been deducted in each of those five months.

Accordingly, it is the determination of the Election Officer that Mr. Mungin is eligible to run for delegate or alternate delegate or to nominate or second nominations 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

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 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

Arthur Wasserman, Regional Coordinator