IN RE: ELIGIBILITY OF MICHAEL MATTIA, MICHAEL IAONNE, RONALD BROWN, FLOYD DYE, JOHN MOLZ, KABIR ASSKARYAR, Local 639.
Protest Decision 2006 ESD 64
Issued: February 1, 2006
OES Case No. E-06-017-012506-AT
(See also Election Appeals Master decision 06 EAM 10)
Daniel Robson, Jr., a member of Local Union 639, filed an eligibility protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that Michael Mattia, Michael Iaonne, Ronald Brown, Floyd Dye, John Molz, and Kabir Asskaryar are ineligible for election as delegate or alternate delegate to the 2006 IBT Convention under the Rules.
Election Supervisor representative J. Griffin "Griff" Morgan investigated this protest.
Findings of Fact and Analysis
At the nomination meeting held January 22, 2006, Mattia, Iaonne, Brown, Dye, Molz, and Asskaryar were nominated for delegate or alternate delegate. The protest alleges each candidate is ineligible for the position for which he is nominated because of a break in the 24-month continuous good standing requirement.
Mattia. TITAN records for Mattia show that, as a local union officer and business agent, he timely paid dues by check-off authorization through December 2004. When his employment with the local union ended, Mattia resumed his previous employment with C&S Wholesale Grocers in January 2005. Although dues for January were not posted to Mattia's TITAN record until February, investigation showed that Mattia was on check-off with C&S and had sufficient earnings in January to fund his dues obligation for that month.
Mattia commenced medical leave with the employer on September 29, 2005 and has not worked since that date. At the time he began leave, Mattia's TITAN record showed him current in his dues. Still on check-off, Mattia was paid vacation pay in October and November, yet no dues were deducted.
Mattia was paid nothing in December by his employer, and he did not cash pay his dues. Under employer policy, an employee on medical leave is entitled to holiday pay for the Christmas holiday only if the employee returns to work. As Mattia remains on leave, he is not yet entitled to the holiday pay. If he did establish entitlement to the Christmas holiday pay, that pay would be sufficient to fund his dues obligation for December.
Article VI, Section 1 of the Rules provides that "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; [and] (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."
A member on dues check-off retains his good standing even if his dues were remitted late or not at all, provided he gave a check-off authorization and had sufficient earnings in the month from which dues could have been deducted. IBT Constitution, Article X, Section 5(c); Dunn, E9 (October 31, 1995); Reynozo, 2005 ESD 18 (October 25, 2005); aff'd, 06 EAM 05 (January 4, 2006).
If a member on check-off is discharged for misconduct and is subsequently reinstated with back pay, the member's eligibility will turn on whether the back pay attributes earnings to months for which no dues were paid. Thompson, E20 (January 18, 1996), aff'd, 96 EAM 63 (January 29, 1996). Based on this precedent, we conclude that, if a member on medical leave is entitled to pay for a particular holiday only if he resumes employment, the member who resumes employment will earn holiday pay attributable to the month in which the holiday occurred and maintain his eligibility for that month, provided the holiday pay was sufficient to fund the member's dues for that month.
We find that Mattia, as a member on check-off, had sufficient earnings in January, October and November 2005 to fund his dues obligations for those months, even though his employer did not timely deduct dues from his earnings for those months. However, as Mattia did not cash pay his dues for December 2005 and has not at present earned any compensation attributable to that month from which dues could be deducted, he was not in good standing for that month at the time of nomination and is not presently in good standing for that month.
Accordingly, we GRANT the protest with respect to Mattia and find him INELIGIBLE to run for delegate or alternate delegate to the 2006 IBT convention.
Iaonne. TITAN records for Iaonne show that he was on withdrawal from December 8, 2003 through February 12, 2004. However, Iaonne credibly denies that he requested or was advised of such withdrawal status. Further, he established to our investigator that he was on check-off authorization with his employer and had sufficient earnings in January and February 2004 to fund his dues obligations for those months.
Iaonne's TITAN record also shows no dues payments for January and August 2005. However, Iaonne remained on check-off, and he presented paystubs demonstrating that he had sufficient earnings in each of those months to satisfy his dues obligation.
If a local union automatically issues a withdrawal card to a member who is out-of-work, such a withdrawal will not constitute an interruption in continuous good standing so long as the member has sufficient earnings from which dues could have been deducted in the months in question. Daly, 2001 EAD 141 (February 6, 2001); Schock, 2000 EAD 13 (August 14, 2000); Zier, E19 (January 29, 1996), aff'd, 96 EAM 72 (February 1, 1996). We find that Iaonne did not request the withdrawal status and that he had sufficient earnings during the period the withdrawal allegedly was in effect to meet his dues obligation. Accordingly, the withdrawal status does not break his continuous good standing.
Further, the unpaid dues in January and August 2005 does not break his continuous good standing because he was on check-off and had sufficient earnings in each month to satisfy his dues obligation.
Accordingly, we DENY the protest with respect to Iaonne and find him ELIGIBLE to run for delegate or alternate delegate to the 2006 IBT convention.
Brown. TITAN records for Brown show that dues for November and December 2005 were posted in December and January, respectively, making his dues payments untimely for those months. However, Brown was on check-off with UPS and had sufficient earnings in November and December to fund his dues obligations for those months. Accordingly, we DENY the protest with respect to Brown and find him ELIGIBLE to run for delegate or alternate delegate to the 2006 IBT convention.
Dye. TITAN records for Dye show that he had no dues payment for February 2005. Dye was on check-off with his employer, Galliher and Hugely. Investigation showed that he did not work from January 7 through February 20, 2005. However, notwithstanding this period of unemployment, he had sufficient earnings in January and February to fund his dues obligations for those months. Accordingly, we DENY the protest with respect to Dye and find him ELIGIBLE to run for delegate or alternate delegate to the 2006 IBT convention.
Molz. TITAN records for Molz show that dues for April 2004 were not posted timely. Investigation showed that Molz was on check-off with his employer and had sufficient earnings in April to fund his dues for that month.
Investigation further showed that Molz went on workers' compensation on September 28, 2005. He timely cash paid his dues for October. On November 23, 2005 he mailed a check for November dues to the local union. However, the dues payment was not posted to his TITAN record until December 8.
A member who makes reasonable, affirmative efforts to pay dues in a timely fashion, but whose dues are received late by the local union due to circumstances beyond the member's control, nonetheless meets the good standing requirement. Jones, 2001 EAD 179 (February 21, 2001); McDonald, E132 (July 9, 1998), aff'd, 98 EAM 363 (July 27, 1998); see also, Barnes, 2001 EAD 123 (February 1, 2001) (good faith effort to pay dues timely determined by considering objective evidence).
We find that the late posting of Molz' April 2004 dues is not disqualifying because Molz was on check-off and had sufficient earnings that month to meet his dues obligation. We further find that mailing a dues payment on November 23 constitutes a reasonable effort to pay dues for that month timely; therefore the posting of these dues to the TITAN record in December does not constitute a break in Molz' continuous good standing.
Accordingly, we DENY the protest with respect to Molz and find him ELIGIBLE to run for delegate or alternate delegate to the 2006 IBT convention.
Asskaryar. We previously determined Asskaryar to be ELIGIBLE for the position of delegate. Asskaryar, 2006 ESD 53 (January 25, 2006).
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 Supervisor 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, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 64
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Daniel F. Robson Jr.
8907 59th Avenue
College Park, MD 20740-4325
Ph: (301) 474-9339
Email: membersunited2006@yahoo.com
Michael J. Mattia
108 Oakford Ave.
Edgewater, MD 21037
mmmattia@comcast.net
Michael Iaonne
112 Rolling Road
Gaithersberg, MD 20877
Ronald Brown
1711 East Capital Street
Washington, DC 20003
Floyd Dye
5112 Trinidad Place
Riverdale, MD 20737-3039
John Molz
489 Rita Drive
Odenton, MD 21113
Kabir Asskaryar
3737 Folly Neck Road
Warsaw, VA 22572
Thomas Ratliff, President
Local 639
3100 Ames Place, NE
Washington, DC 20018
Fax: 202-529-9382
Steven R. Newmark
1725 K Street, NW Suite 1400
Washington, DC 20005
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com