IN RE: ELIGIBILITY OF JOSH LACEY, ANDY SORGEN, BRANDY HARRINGTON, DANIEL MOSEID, RYAN McCONNELL, LUKE VAULE, DREW HILL, DIANE SIEGFRIED, MIKE McCLASKEY, GARY PLOEGSMA, MARY LANG, MIKE POLLARDO, JIM JOHANSEN, MIKE WALKER, ERIC SKOG, MARK MARTIN, MIKE WAINE, CHUCK BOWMAN, RICHARD BARTNIKOWSKI, and BRIAN THOMAS, Local Union 174.
Protest Decision 2011 ESD 86
Issued: January 26, 2011
OES Case No. E-009-010411-FW
Wilfred Byington, member of Local Union 174, filed a pre-election 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 delegate candidates Josh Lacey, Andy Sorgen, Brandy Harrington, Daniel Moseid, Ryan McConnell, Luke Vaule, Drew Hill, Diane Siegfried, Mike McClaskey, Gary Ploegsma, Mary Lang, Mike Pollardo, Jim Johansen, Mike Walker and alternate delegate candidates Eric Skog, Mark Martin, Mike Waine, Chuck Bowman, Richard Bartnikowski and Brian Thomas are ineligible for nomination because each lacked the continuous good standing required for that position. The protestor stated: "I contend they do not meet the requirements of Article VI, Eligibility requirements for Convention Delegate, Alternate Delegate and International Officers." No facts particular to the eligibility of any nominee were alleged in the protest.
Election Supervisor representative Maria Ho investigated this protest.
Findings of Fact 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 nominations meeting for Local Union 174 delegates and alternate delegates election was held January 3, 2011. Accordingly, the 24 month period during which candidates must be in continuous good standing in order to be eligible for nomination ran from January 2009 through December 2010. To verify each challenged candidate's eligibility during this period, we reviewed their TITAN records for dues remittances received from them or remitted on their behalf; where additional information was needed, we sought it from the candidates. Our findings follow.
1. Josh Lacey - Eligible
Lacey paid dues by check-off authorization with his employer, UPS, for the entire eligibility period. Although full dues were not deducted timely for February 2009, Lacey had earnings in excess of his monthly dues obligation in this month. A member on dues check-off retains his good standing even if his dues were remitted late or not at all by the employer, provided he 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); 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). This rule operates to protect Lacey's continuous good standing for February 2009, when his employer did not remit his dues timely. Accordingly, we find him ELIGIBLE.
2. Andy Sorgen - Eligible
Sorgen paid dues by check-off authorization with his employer, UPS, for the entire eligibility period. Although full dues were not deducted timely for January, June and August 2009, Sorgen had earnings in excess of his monthly dues obligation in each of those months. Accordingly, we find him ELIGIBLE.
3. Brandy Harrington - Eligible
Harrington paid dues by check-off authorization with her employer, UPS, for the entire eligibility period. Although full dues were not deducted timely for June 2009 and July 2010, Harrington had earnings in excess of her monthly dues obligation in each of those months. Accordingly, we find her ELIGIBLE.
4. Daniel Moseid - Eligible
Moseid paid dues by check-off authorization with his employer, UPS, for the entire eligibility period. Although full dues were not deducted timely for January and August 2009, and February 2010, Moseid had earnings in excess of his monthly dues obligation in each of those months. Accordingly, we find him ELIGIBLE.
5. Ryan McConnell - Eligible
McConnell paid dues by check-off authorization with his employer, UPS, for the entire eligibility period. Although full dues were not deducted timely for May 2009, McConnell had earnings in excess of his monthly dues obligation in this month. Accordingly, we find him ELIGIBLE.
6. Luke Vaule - Eligible
Vaule paid dues by check-off authorization with his employer, Coca-Cola, for the entire eligibility period. Although full dues were not deducted timely for September 2010, Vaule had earnings in excess of his monthly dues obligation in this month. Accordingly, we find him ELIGIBLE.
7. Drew Hill - Eligible
Hill paid dues timely by check-off authorization with his employer, UPS, from January 2009 through February 2010. No March dues were remitted on his behalf. The record shows that on March 5, 2010, Hill was issued an honorable withdrawal card. The record indicates further that the withdrawal card was deposited on March 30, 2010. Hill claims he did not request the withdrawal card, and the local union has no record of the request, although staff claims they typically do not issue withdrawal cards without permission.
Hill was laid off and had no earnings from March 1 until March 30, when he was recalled. However, he had one day of earnings in March after he was recalled (Hill's pay records for the week ending April 3, 2010 show he received pay for three full working days, in addition to one sick day, and overtime), sufficient to cover his dues. Although full dues were not deducted in April 2010, he had earnings in excess of his monthly dues obligation in that month as well. That dues for months in which an employer failed to deduct were paid late or not at all does not affect the continuous good standing of a member on check-off, absent notice from the union to the employee requesting the unpaid dues. Under Article X, Section 5(c) of the IBT Constitution, "where the Local Union notifies the member of his employer's failure to make check-off deductions, then payment must be made by the member within thirty (30) days of said notice in order to retain good standing status." We found no evidence that such a notice was issued to Hill. Therefore, his continuous good standing is not interrupted by the unpaid dues in these months.
From May through December 2010,vdues were remitted timely via check-off. Accordingly, we find him ELIGIBLE.
8. Diane Siegfried - Eligible
Diane Siegfried paid dues by check-off authorization with her employer, UPS, for the entire eligibility period. Although full dues were not deducted timely for May 2009, Siegfried had earnings in excess of her monthly dues obligation in this month. Accordingly, we find her ELIGIBLE.
9. Mike McClaskey - Eligible
McClaskey paid dues by check-off authorization with his employer, UPS, for the entire eligibility period. Although full dues were not deducted timely for June 2009, McClaskey had earnings in excess of his monthly dues obligation in this month. Accordingly, we find her ELIGIBLE.
10. Gary Ploegsma - Eligible
Ploegsma is a cash dues payer. He paid cash dues timely in every month. The record shows that Ploegsma was issued a withdrawal card on June 23, 2010, but his June 2010 and July 2010 dues had already been paid on June 3, 2010. The record shows the withdrawal card was deposited on July 19, 2010. As his July dues had been paid early on June 3, 2010, there was no interruption in Ploegsma's dues payments or good standing as a result of the withdrawal. Accordingly, we find him ELIGIBLE.
11. Mary Lang - Eligible
For the months of January and February 2009, Lang's dues were paid for by Local Union 174 through its sick dues benefit, which covers dues for up to 6 months for ill or injured members. To qualify for the benefit, a member must request a sick dues form, fill out part of the form, have his/her physician fill out the remainder form, submit the completed form, and obtain the approval of the local union executive board, which meets monthly. We note that Lang's dues for January 2009 and February 2009, along with her December 2008 dues, were paid by Local Union 174 in February 2009. Lang's sick dues request was received by the local union on January 22. The request was granted at the January executive board meeting, but dues for January 2009 and February 2009 were not applied until February. We recognize that Lang submitted her completed request form during the month of January, the first month in the eligibility period. The issue of whether she requested the benefit in a timely fashion with regard to her December 2008 dues is irrelevant as December 2008 is outside the 24-month eligibility period we must examine.
From February 2009 through December 2010, Lang paid dues timely by check-off authorization with her employer, King's County Solid Waste Division. Accordingly, we find her ELIGIBLE.
12. Mike Pollardo - Eligible
Pollardo paid dues by check-off authorization with his employer, Waste Management Northwest, for the entire eligibility period. Pollardo's dues were remitted timely by his employer in each of the 24 months. Accordingly, we find him ELIGIBLE.
13. Jim Johansen - Eligible
Johansen paid dues by check-off authorization with his employer, UPS, for the entire eligibility period. Although full dues were not deducted timely for May and August 2009, and August 2010, Johansen had earnings in excess of his monthly dues obligation in each of those months from which dues could have been deducted. Accordingly, we find him ELIGIBLE.
14. Mike Walker - Eligible
Walker paid dues by check-off authorization with his employer, Cadman, for the entire eligibility period. Although full dues were not deducted timely for February 2009 and August and October 2010, Walker had earnings in excess of his monthly dues obligation in each of these months. Accordingly, we find him ELIGIBLE.
15. Eric Skog - Eligible
From January 2009 through April 2010, Skog paid dues by check-off authorization with his employer, UPS. Although full dues were not deducted timely for May and August 2009, and January 2010, Skog had earnings in excess of his monthly dues in each of these months. For May and June 2010, Skog's dues were paid by Local Union 174 in June through its sick dues benefit, which covers dues for up to 6 months for ill or injured members. Skog claims he requested the form during April or May. Skog's completed sick dues request shows his portion was completed on June 8, and the physician's portion was completed on June 17. No receipt date appears in the record, but the request was approved during the June executive board meeting.
Whether Skog requested May sick dues timely is irrelevant. Although Skog did not work during the month of May 2010 and his dues for this month were paid for through the sick dues benefit, records show he had just over 5 hours of earnings during May 2010 from UPS vacation or sick pay, sufficient to cover his monthly dues obligation, a fact we verified with the Western Conference of Teamsters Pension Trust, which has a record of his hours and pension payment for that month.. Local Union 174 does not notify check-off members who miss a dues payment until their accounts are two months in arrears; therefore Skog would not have received notice. From July through December 2010, Skog's dues were paid timely by check-off authorization with UPS. Accordingly, we find him ELIGIBLE.
16. Mark Martin - Eligible
From January 2009 through May 2009, Mark Martin paid dues timely by check-off authorization with his employer, Ruan Transportation. For June and July 2009, Martin's dues were paid for by Local Union 174 in July through their sick dues benefit, which covers dues for up to 6 months for ill or injured members. However, we find that Martin requested the benefit in a timely fashion, during the month of June. Martin's sick dues request was received June 22 by Local Union 174, but, as the local union's executive board had already had their monthly meeting for June, the request was not approved until July and sick dues for June 2009 and July 2009 were not remitted by the local union until mid-July. From August 2009 through December 2010, Martin paid dues by check-off authorization with Ruan Transportation. Although his dues for February 2010 were remitted late, he had earnings in excess of his monthly dues obligation in this month. Accordingly, we find him ELIGIBLE.
17. Mike Waine - Eligible
Waine paid dues by check-off authorization with his employer, Rabanco, for the entire eligibility period. Waine's dues were remitted timely by his employer in each of the 24 months. Accordingly, we find him ELIGIBLE.
18. Chuck Bowman - Ineligible
Bowman is a cash dues payer. From January 2009 through June 2010, he paid cash dues timely to Local Union 174 for every month. However, we find he made a late cash payment for his July 2010 dues during the month of August. The local union's "over counter ledger," a record of all payments made at the local union's office, shows Bowman made a payment of $397 in cash, covering his dues and assessments for July through December 2010, in person to the local union on August 13, 2010. The receipt for these dues is also dated August 13, 2010. Although the local union sometimes assesses a $10 fee for late cash payments, that fee was not applied in this case as it is reserved for individuals who repeatedly make late cash payments. Bowman has no records to show that his payment was made timely. Accordingly, we find him INELIGIBLE.
19. Richard Bartinowski - Eligible
Bartinowski paid dues by check-off authorization with his employer, Waste Management Northwest, for the entire eligibility period. Bartinowski's dues were remitted timely by his employer in each of the 24 months. Accordingly, we find him ELIGIBLE.
20. Bryan Thomas - Eligible
Thomas paid dues by check-off authorization with his employer, UPS, for the entire eligibility period. Although full dues were not deducted timely for April 2009, Thomas had earnings in excess of his monthly dues obligation in this month. Accordingly, we find him ELIGIBLE.
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 86
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 Hall 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
1555 North RiverCenter 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
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
Wilfred Byington
Teamsters Local Union 174
14675 Interurban Ave. So., #303
Tukwilla, WA 98168
teamsterbill@yahoo.com
Mary Lang
P.O. Box 46183
Seattle, WA 98146
mplibra1251@comcast.net
Josh Lacey
28024 142nd Street SE
Kent, WA 98042
jplacey2004@yahoo.com
Rick Hicks, Secretary-Treasurer
Teamsters Local Union 174
14675 Interurban Ave. So., #303
Tukwilla, WA 98168
rhicks@teamsterslocal174.org
Rochelle Goffe
1234 22nd Avenue, E
Seattle, WA 98112
rochellegoffe@gmail.com
Christine Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
chrismrak@gmail.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
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