Protest Decisions

IN RE: ELIGIBILITY OF RYAN SHERARD, FRED CORRELL, CLARK RITCHEY, ART REYES, JORGE RIVERA, and DANIEL SEVILLA. Local Unions 388M & 747M.
Protest Decision 2011 ESD 67
Issued: January 10, 2011
OES Case No. E-008-123010-FW

Deane Western, member and vice president of administration of District Council No. 2, 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 contested the preliminary determination by our office that Ryan Sherard, Fred Correll, and Clark Ritchey were not eligible for nomination as delegate or alternate delegate because each suffered a break in the required 24 consecutive months of good standing.[1] The protest also contested the preliminary determination by our office that Art Reyes, Jorge Rivera and Daniel Sevilla were not eligible to nominate or second the nomination of candidates for delegate or alternate delegate because of dues arrearages.

Election Supervisor representatives Maria Ho and Michael Miller investigated this protest.

Findings of Facts and Analysis

Under Article VI, Section 1(a) of the Rules for the 2011 IBT Election, "[t]o 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 the month of nomination; and (3) Be eligible to hold office if elected."

The IBT constitution declares, at Article X, Section 5(c), that dues "are due on or before the first day of the month and must be paid on or before the last business day of that month." The provision continues:

Any member failing to pay his dues at such time shall not be in good standing for such month but may restore such good standing for such month for the purpose of attending meetings, nominating, voting, and participating in affairs of the Local Union by the payment of his delinquent dues prior to said meeting. Payment of such dues after their due date shall not restore good standing status for such month or months in computing the continuous good standing status required by Article II, Section 4 of the Constitution as a condition of eligibility to office.

This constitutional provision defining timely payment of cash dues applies to eligibility to be nominated for delegate or alternate delegate. Eligibility of Weeks, 2010 ESD 38 (October 13, 2010).

All of the members who are the subject of this protest are former GCC members. The GCIU merged into the IBT in 2005. Protestor Western contends that the IBT constitutional rule concerning timely payment of dues "is not our [i.e., the GCC] rule. Our self-pay members must pay each month's dues by the last day of the month following the month for which the dues are due and payable. All members can also make-up back dues without any penalty." In support of this contention, Western submitted a document titled "Constitution and Laws - Teamsters District Council No. 2," which provides that a member in good standing is one who "pays each month's dues by the last day of the month following the month for which the dues are due and payable." Further, the document provides that "[u]pon payment of dues in arrearage, … the member can be reinstated to full membership."

Western's contention lacks merit. The merger of the GCIU into the IBT was governed by a merger agreement dated July 1, 2004. That agreement at section 3.4 provided a special rule for GCC delegates to the June 2006 IBT convention and for GCC candidates for International office, viz.

One month of continuous good standing, February 2006, will be required to be eligible to run for Delegate or Alternate Delegate for the 2006 IBT Convention. Five months of continuous good standing (January through May 2006) shall be required of former GCIU members to be eligible to be nominated, at the 2006 IBT Convention, to run for International Union office.

This special eligibility rule for former GCC members applied only to the 2006 convention. Section 3.3 of the merger agreement states that "[e]xcept as otherwise provided by this Merger Agreement, the provisions of the IBT Constitution shall apply on and after January 1, 2007." No other provision of the agreement speaks to eligibility to be nominated for delegate or alternate delegate to the IBT convention.

The "Constitution and Laws" Western submitted do not change the result. They directly contradict provisions of the IBT constitution, and they were not submitted for review and approval by the IBT General President, as required by Article VI, Section 4(a) of the IBT constitution. Accordingly, we give them no weight in assessing the eligibility of the members this protest concerns.

Local Union 388M and 747M hold multiple nominations meetings for the delegates and alternate delegates election in January 2011. Therefore, the 24 month period during which candidates must be in continuous good standing in order to be eligible for nomination runs from January 2009 through December 2010. 

Ryan Sherard is a cash dues payer. His TITAN record shows that his dues were late for each month during the eligibility period beginning January 2009 and continuing through June 2009 and again from August 2009 through August 2010, and finally has not paid his dues for any month during the period September 2010 through December 2010. Thus, the TITAN record shows he made a cash dues payment of $390 on June 12, 2009 that paid his monthly dues obligation for the period October 2008 through March 2009. He made another cash payment of $260 on July 20, 2009 that paid his monthly dues for April through July 2009 (the payment of July dues was timely made). On January 18, 2010, he made a cash payment of $195 to satisfy his dues obligation for the period August through October 2009. He paid an additional $195 on May 26, 2010 to pay his dues for November and December 2009 and January 2010. On July 30, 2010, he paid $195 to satisfy his dues for February through April 2010. On November 30, 2010, he paid $260 to fulfill his dues obligation for May through August 2010. Based on this record, Sherard has not maintained 24 months of continuous good standing and is ineligible to be nominated for delegate or alternate delegate.

Protestor Western submitted a dues payment record for Sherard that varied from the TITAN record. It showed he paid January through March 2009 dues on March 24, 2009; April through July 2009 dues on July 20, 2009; August through October 2009 dues on October 30, 2009; November 2009 through January 2010 dues on February 19, 2010; February through April 2010 dues on April 8, 2010; May through August 2010 dues on August 13, 2010; September through November 2010 dues on November 15, 2010; and December 2010 dues on December 30, 2010. Western provided no explanation for the difference in dues payment history between TITAN and the documents he submitted. However, even under the latter documents, Sherard suffered an interruption in his continuous good standing in January, February, April, May, June, August, September, November and December 2009, and January, February, March, May, June, July, September, and October 2010. Accordingly, Sherard is INELIGIBLE to be nominated for delegate or alternate delegate to the IBT convention, and we DENY the protest concerning him.

Fred Correll's TITAN record shows that he paid dues for January through July 2009 on July 20, 2009; for August through October 2009 on January 18, 2010; for November 2009 through January 2010 on May 26, 2010; for February through April 2010 on July 30, 2010; for May through August 2010 on November 30, 2010; and dues for September through December 2010 remain unpaid. The records Western submitted for Correll show dues for January through March 2009 paid on March 24, 2009; for April through July 2009 paid on July 20, 2009; for August through October 2009 paid on October 30, 2009; for November 2009 through January 2010 paid on February 19, 2010; for February through April 2010 paid on April 8, 2010; for May through August 2010 paid on August 13, 2010; for September through November 2010 paid on November 15, 2010; and December 2010 dues paid on December 30, 2010. Even under the more favorable picture presented by Western's documents, Correll had interruptions in his continuous good standing for January, February, April, May, June, August, September, November and December 2009, and January, February, March, May, June, July, September and October 2010. Accordingly, Correll is INELIGIBLE to be nominated for delegate or alternate delegate to the IBT convention, and we DENY the protest concerning him.

Clark Ritchey's TITAN record shows that he paid dues for January through March 2009 on June 12, 2009; for April through July 2009 on July 20, 2009; for August and September 2009 on January 18, 2010; for October through December 2009 on May 26, 2010; for January through April 2010 on July 30, 2010; and for May through August 2010 on November 30, 2010. TITAN shows Ritchey's dues for September 2010 and later as unpaid. The records Western submitted for Ritchey show dues for January through March 2009 paid on March 24, 2009; for April through July 2009 paid on July 20, 2009; for August through October 2009 paid on October 30, 2009; for November 2009 through January 2010 paid on February 19, 2010; for February through April 2010 paid on April 8, 2010; for May through August 2010 paid on August 13, 2010; for September through November 2010 paid on November 15, 2010; and December 2010 dues paid on December 30, 2010. Even under the more favorable presentation of Western's documents, Ritchey had interruptions in his continuous good standing for January, February, April, May, June, August, September, November and December 2009, and January, February, March, May, June, July, September and October 2010. Accordingly, Ritchey is INELIGIBLE to be nominated for delegate or alternate delegate to the IBT convention, and we DENY the protest concerning him.

Reyes, Rivera and Sevilla each requested verification of their eligibility to nominate or second a nomination. To be eligible for that purpose, a member must have his/her dues paid through the month before the month in which the nominations meeting is held. Rules, Article II, Section 5(h). For these three members, their dues must be paid through December 2010. Reyes' TITAN record shows that his dues are paid through July 2010; Rivera's also shows a paid-through date of July 2010; and Sevilla's a September 2010 paid-through date. Accordingly, unless each pays his dues through December 2010 no later than the business day before the nominations meeting at which he seeks to nominate or second the nomination of a candidate, he is INELIGIBLE to do so. Accordingly, we DENY the protest concerning these members.

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, 1801 K Street, N.W., Suite 421 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
        2011 ESD 67

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
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
1555 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53213
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

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

Ryan Sherard
710 East Commonwealth Avenue
Fullerton, CA 92831

Fred Correll
710 East Commonwealth Avenue
Fullerton, CA 92831

Clark Ritchey
2233 North Lombard
Portland, OR 97217

Wayne Lind
5933 Winwood Drive SE
Olympia, WA 98513

Art Reyes
765 Griswold Avenue
Covina, CA 91722

Jorge Rivera
16151 Fellowship #4
La Puente, CA 91744

Daniel Sevilla
1345 East Harvest Moon Street
West Covina, CA 91792

Deane Western
710 East Commonwealth Avenue
Fullerton, CA 92831

Michael J. Miller
1611 Granville Ave., #8
Los Angeles, CA 90025
miller.michael.j@verizon.net

Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com

Maria Ho
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey J. Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com