IN RE: ELIGIBILITY OF
IRENE COPLEY,
JUDY BROWN, and
RICK REYES,
Local Union 670
Protest Decision 2010 ESD 27
Issued: September 17, 2010
OES Case No. E-003-091010-FW
Randy Ficek, a member of Local Union 670, timely filed an eligibility protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that Irene Copley, Judy Brown and Rick Reyes are ineligible to stand as candidates, or to nominate or second the nomination of candidates in Local Union 670's delegate and alternate delegate election.
Election Supervisor representative Kathryn A. Naylor investigated this protest.
Findings of Fact and Analysis
At Local Union 670's nominations meeting held September 8, 2010, 8 candidates, including Copley, Brown and Reyes, were nominated for 5 delegate positions. Copley was nominated by Brown and seconded by Reyes; Brown was nominated by Reyes with a Copley second; and Reyes was nominated by Copley with Brown supporting.
To be validly nominated for delegate, a candidate must satisfy two elements: first, he/she must be eligible to stand as a candidate; second, the candidate's nomination must be made and seconded by members eligible to do so. Article VI, Section 1(a) of the Rules states that to be eligible to stand as a candidate, 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. To be eligible to nominate or second a nomination, a member must have his/her dues paid through the month prior to the month in which the nominations meeting is held. Article II, Section 5(h).
As Copley, Brown and Reyes each are candidates, nominators and seconders, we examine their eligibility under both of the standards just cited.
All three members are employed by Heinz Ontario, where each paid dues through checkoff authorization. Heinz's collective bargaining agreement with the local union expired February 1, 2010. While the parties negotiated a successor contract, Heinz invoked its right to suspend checkoff. As such, the employer ceased deducting dues from its employees' wages and remitting them to the local union. With checkoff suspended, the local union posted notices at the worksite on February 2 explaining the employer's action and advising that members were responsible for paying cash dues to the local union for February and for each month thereafter that checkoff remained suspended. A second notice was posted in June advising members that they had to be current in their dues obligations in order to attend membership and ratification meetings for the successor contract. It is settled law that a member may not rely on a checkoff authorization for payment of dues where the employer and the union do not have a valid checkoff agreement in place. Eligibility of Jennings et al, 2006 ESD 69 (February 10, 2006), aff'd, 06 EAM 8 (February 14, 2006).
The successor agreement was ratified in August 2010. As with the predecessor one, the new contract contained a checkoff provision. At a joint labor management meeting held that month, an employer representative committed to local union officials (including Reyes, who served as an elected steward in the bargaining unit) that the employer would work to resume checking off and remitting members' dues beginning that month. Reyes relayed this commitment to members employed at the plant, advising that they need not pay cash dues for August as the employer would deduct and remit the dues through the existing checkoff authorizations.
Against this background, we examine the dues payment record of each of the members whose eligibility the protest challenges. The TITAN record for Copley for the 24 month period ending August 2010, the month before the month in which the nominations meeting occurred, showed timely payment of dues by checkoff through January 2010. The record further showed cash dues payments in February, April, June, July and August, with the July payment covering dues for two months. With the breaks in continuous good standing represented by the lack of timely payments for March and May, Copley is not eligible to run for delegate.
class=MsoNormal style='text-align:justify'>Although we find that Copley lacked the continuous good standing necessary to stand as a delegate candidate, we conclude that she was a member in good standing and therefore eligible to nominate and second the nomination of delegate candidates by the time of the nominations meeting held September 8. A member who has lost good standing through late payment or non-payment of dues can restore that good standing by paying delinquent dues, fines and assessments. In Copley's case, given the lack of dues payments in March and May, the cash dues payments she made in April, June, July and August were applied to arrearages from previous months. As such, Copley's cash dues were paid through July. Thereafter, when the new labor agreement restored checkoff in August, she was entitled to rely on the checkoff mechanism to deduct her dues from her wages and remit them to the local union. It is firmly established that a member on dues check-off retains her good standing even if her dues were remitted late or not at all by the employer, provided she had signed a check-off authorization and had sufficient earnings or paid leave in the month from which dues could have been deducted. IBT Constitution, Article X, Section 5(c); Dunn, E9 (October 31, 1995); Eligibility of John Gerow, et al., 2006 ESD 121 (March 2, 2006); Eligibility of Thiel, 2010 ESD 16 (July 26, 2010), appeal withdrawn, 10 EAM 4 (August 6, 2010). Copley's TITAN record shows no dues payment through checkoff to satisfy her August dues obligation. Nonetheless, she retained her good standing for that month under the principle just stated because a new contract was ratified in August 2010 and the checkoff authorization was restored to effect. Accordingly, we find that Copley was a member in good standing as of the date of the September 8 nominations meeting, and she therefore was eligible to nominate or second the nomination of delegate candidates.
Brown has the same result. Her TITAN record showed timely dues payment by checkoff through January 2010. Thereafter, she made cash dues payments in February, March, May, and August, with the last payment covering three months' dues. This record shows that she lacked the continuous good standing to be eligible to run for delegate, as she did not make timely dues payments for April, June and July.
Although Brown lacked continuous good standing to be eligible to run for delegate, we find she had good standing to nominate or second delegate candidates. Her cash dues payments in May and August were applied to arrearages from previous months, paying her dues obligations through July. Thereafter, like Copley, Brown was entitled to rely on the restored checkoff provision for her August dues, even though her TITAN record showed the employer failed to remit the dues. Accordingly, Brown was eligible to nominate or second a nomination at the September 8 nominations meeting.
Reyes was also a Heinz employee, but he was an elected steward for whom the local union paid dues. His TITAN record showed timely payment of dues for each of the 24 months in the eligibility period, and he therefore is eligible to run for delegate and to nominate and second the nominations of other candidates. As Reyes was nominated and seconded by Copley and Brown, both of whom were eligible to do so as members in good standing, Reyes was validly nominated at the nominations meeting held September 8.
Accordingly, we GRANT the protest in part and find that Copley and Brown are INELIGIBLE for election as delegates and cannot appear on the ballot. We DENY the protest's allegation with respect to Reyes and find that he is ELIGIBLE for election as delegate and must appear on the ballot.
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, 1801 K Street, N.W., Suite421 L, Washington, D.C. 20006, 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
2010 ESD 27
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Keegel 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
155 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Randy Ficek
2127 Cerise Avenue
Salem, OR 97304
ht4cycl@aol.com
Diana Franken
Secretary-Treasurer
IBT Local Union 670
P.O. Box 3048
Salem, OR 97302
Via fax 1-503-585-5469
Irene Copley
1960 Brianna C
Ontario, OR 97914
Judy Brown
P.O. Box 6
Payette, ID 83661-0006
Rick Reyes
1932 S. Cressid
Boise, ID 83709
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com