IN RE: ELIGIBILITY OF JOHN GEROW, PATRICIA WARD JENKINS, THOMAS COLEMAN, MARIA PEREZ, PATRICK GUASHINO, KEVIN THERIEN, GLORIA MORALES, AMY LEWIS, GLENDA REYES, ANTONIO BENTHALL, JOSE SILVA, LLOYD VELASQUEZ, CELESTE MAGANA, NOELBA CASTANO, SAM VINSON, MARK FEINBERG AND RON KING, Local Union 97
Protest Decision 2006 ESD 121
Issued: March 2, 2006
OES Case No. E-06-020-020206-AT
(See also Election Appeals Master decision 06 EAM 16)
Mark Kleinerman, a member of Local Union 97, 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"). The protest alleged that all members of the John Gerow slate, consisting of John Gerow, Patricia Ward Jenkins, Thomas Coleman, Maria Perez, Patrick Guashino, Kevin Therien, Gloria Morales, Amy Lewis, Glenda Reyes, Antonio Silva, Lloyd Benthall, Jose Velasquez, Celeste Magana, Noelba Castano, Sam Vinson, Mark Feinberg, and Ron King are ineligible for election as delegate or alternate delegate to the 2006 IBT Convention under the Rules.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
TITAN records show that eight of the seventeen protested members of the John Gerow slate have paid their dues timely for the 24 months of the eligibility period. These members are John Gerow, Thomas Coleman, Maria Perez, Patrick Guashino, Amy Lewis, Glenda Reyes, Antonio Silva, and Jose Velasquez. All eight members were on check-off authorization through their employers.
The remaining nine members are:
Patricia Ward Jenkins
The TITAN record for Jenkins shows that no dues were paid or posted in October or November 2004. A cash payment was posted on December 10, 2004, that covered her dues for October, November, and December 2004. Investigation showed that Jenkins was on active military duty during those months and that she had her daughter pay her dues in December 2004.
Kevin Therien
Therien's TITAN record shows that his dues were posted late for the months of February 2004 and January, August, and September 2005. In each instance, the dues were posted the following month. In addition, the record shows no dues were paid or posted for January 2004.
Investigation showed that Therien was employed by the Township of Lacey during the entire eligibility period and was on check-off authorization. Linda Bergalowski of the Township's personnel department confirmed that Therien had earnings in each of the months in question to fund his dues.
Gloria Morales
Morales' TITAN record reflects that dues payments were posted one month late on a consistent basis for the entire eligibility period. Our investigation showed that Morales was continuously employed at the New Jersey College of Medicine during the entire eligibility period and was on check-off authorization at all times during that period.
Lloyd Benthall
Benthall's TITAN record shows no dues payment made or posted for April or July 2005. Our investigation showed that Benthall was continuously employed at White Rose during the entire eligibility period and paid his dues through check-off authorization.
Celeste Magana
Magana's TITAN report shows that dues were posted late on three occasions during the eligibility period: January, February, and May 2005. In all three instances, the dues were paid the following month. Our investigation revealed that Magana was employed by Silverline, worked those months, and was on check-off authorization.
Noelba Castano
Castano's TITAN report shows that dues were posted three months late on a consistent basis throughout the entire eligibility period. The report indicates that Castano was on dues check-off. Our investigation revealed that Castano was employed by Silverline for the entire eligibility period.
Sam Vinson
The TITAN record for Sam Vinson indicates that he was took a voluntary withdrawal in April 2005 and returned from withdrawal in June. Investigation showed that Vinson took this withdrawal because of illness.
Mark Feinberg
Feinberg's TITAN record shows that dues were posted late for the months of January, February, and May 2005. In each instance, the dues were posted the following month. Our investigation found that Feinberg was employed throughout the entire eligibility period and was on check-off authorization through his employer, Silverline.
Ron King
The TITAN record for Ron King shows that dues posted each month were consistently applied to the previous month's dues. King paid his dues by check-off authorization through his employer, the New Jersey College of Medicine. Our investigation revealed that King was employed for the entire 24-month eligibility period.
Analysis
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."
Gerow, Coleman, Perez, Guashino, Lewis, Reyes, Silva, and Velasquez meet these requirements without further need for analysis.
A member on dues check-off retains his good standing even if his dues were remitted late or not at all, provided he/she had signed 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). Therefore, the fact that dues payments are applied to a previous month's dues will not render a member ineligible if that member had signed a check-off authorization and had sufficient earnings from which dues could have been deducted. Under this principle, Therien, Morales, Benthall, Magana, Castano, Feinberg, and King retain their good standing even though their monthly dues payments were often applied to previous months' dues during the eligibility period.
In contrast, Jenkins failed to pay her monthly dues timely without interruption during the 24-month eligibility period since she did not pay dues for October or November 2004. Although she paid her dues by check-off authorization during the periods she was actively employed, she was required to make timely cash payments of dues while on military leave. In Wuorinen, E7 (October 6, 1995), the candidate asserted that his non-payment of dues was attributable to his National Guard service. Election Officer Quindel rejected this assertion, stating that "neither the Constitution of the IBT nor the bylaws of the local union contain any provision exempting a member from dues payments on this basis." While this result may be unduly harsh to members who also provide valuable service to our nation, we are constrained by Article I of the Rules to apply this precedent.
Article II, Section 4(a)(1) of the Rules states that, "if a member on withdrawal deposits his card in the month immediately following the month for which it was effective and pays his dues for both months in a timely manner as provided in Article X, Section 5(c), such period of withdrawal shall not be considered a break in continuous good standing in the Local Union."
Since Vinson was on withdrawal status commencing in April 2005 and continuing to June, we find that he suffered a break in continuous good standing.
Accordingly, we DENY the protest with respect to John Gerow, Thomas Coleman, Maria Perez, Patrick Guashino, Kevin Therien, Gloria Morales, Amy Lewis, Glenda Reyes, Antonio Silva, Lloyd Benthall, Jose Velasquez, Celeste Magana, Noelba Castano, Mark Feinberg, and Ron King and hold these members ELIGIBLE for election as delegate or alternate delegate. We GRANT the protest with respect to Patricia Ward Jenkins and Sam Vinson and hold these members INELIGIBLE for election as delegate or alternate delegate.
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
885 Third Avenue, Suite 1000
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 121
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
barbaraharvey@comcast.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
Steven R. Newmark
1725 K Street, NW Suite 1400
Washington, DC 20005
snewmark@ibtvote.org
John Gerow, President
Teamsters Local 97
485 Chestnut Street
Union City, NJ 07083
Patricia Ward Jenkins,
Secretary/Treasurer
Teamsters Local 97
485 Chestnut Street
Union City, NJ 07083
Maria Perez
Teamsters Local 97
485 Chestnut Street
Union City, NJ 07083
Election Services Corporation
990 Stewart Avenue, Suite 500
Garden City, NY 11530
Lloyd Benthall
283 Hunterdon Street
Newark, NJ 07103
Noelba Castano
520 Wheatland Avenue, 2nd Floor
Bound Brook, NJ 08805
Thomas Coleman
299 So. Harrison Street
East Orange, NJ 07018-1377
Mark Feinberg
14 Surrey Road
Somerset, NJ 08873
Patrick Guaschino
1172 Dell Street
Toms River, NJ 08755
Ronald King
365-D Schley Street #6
Newark, NJ 07112
Amy Lewis
243 Dodd Street
East Orange, NJ 07017
Celeste Magana
P.O. Box 5223
Plainfield, NJ 07061
Gloria Morales
P.O. Box 123
Irvington, NJ 07111-0123
Glenda Reyes
44 Whitewood Avenue
North Plainfield, NJ 07060
Antonio Silva
410 High Street
Cranford, NJ 07016
Keven Therien
573 Shark Lane
Manahawkin, NJ 08050-5215
Jose Velasquez
7 Myrtle Avenue, 1st Floor
No Plainfield, NJ 07060-4603
Sam Vinson
217 County Road
Cliffwood, NJ 07721-1074