Protest Decisions

IN RE: ELIGIBILITY OF JANY TREADWELL, MARK DEVILBLISS, MIKE RUDOLPH CHERYL SCHMIT and JAVON JEFFERSON, Local Union 631.
Protest Decision 2011 ESD 102
Issued: February 7, 2011
OES Case No. E-012-010711-GP and E-036-020411-GP

John Phillipenas, secretary-treasurer of Local Union 631, filed eligibility protests pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protests alleged that Jany Treadwell, Mark Devilbliss, Mike Rudolph, Cheryl Schmit and Javon Jefferson were ineligible for nomination as delegates or alternate delegates to the 2011 IBT convention.

Election Supervisor representative Kathryn A. Naylor investigated this protest.

Findings of Fact and Analysis

Article VI, Section 1(a) 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; (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.

Local Union 631 held its nominations meeting on January 6, 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. 

1. Jany Treadwell -- Eligible

Treadwell pays her dues by cash with Local Union 631. The protest alleged that Treadwell was on withdrawal from April 2009 through June 2009. Her TITAN records reflect a withdrawal card was issued on June 29, 2009 and that it was deposited on July 30, 2009. Her TITAN records reflect timely cash payments for the relevant 24-month period, including timely cash payments in June and July 2009 on the dates the withdrawal card was issued and deposited. Treadwell explained that she had requested the withdrawal card in June 2009; however, she decided to pay her dues for June and July 2009 to retain her good standing and she asked the local union to remove the withdrawal card in July 2009, when she paid her dues for July. As a result, we find that there was no interruption in her continuous good standing during the 24-month eligibility period. A member who deposits her withdrawal card in the next month after receiving it and either paid cash dues timely in both months or had sufficient earnings in both months to fund dues obligation through check-off authorization does not suffer an interruption in continuous good standing. Greishop, 2006 ESD 139 (March 13, 2006). Accordingly, we find Treadwell ELIGIBLE for nomination as delegate.

2. Mark Devilbiss - Ineligible

The protest alleged that Devilbiss' dues were not paid for December 2010, the month prior to the nominations meeting, and that he was suspended from membership from April through October 2010. Review of his TITAN records reveals that he paid his dues in cash to Local Union 631; the records show numerous late cash payments recorded during the 24-month eligibility period at issue. Devilbiss acknowledged that he made late cash payments during the 24-months at issue. However, he contends that the in-house attorney for the local union specifically told him that he was eligible to run for nomination as a delegate, and that he relied on that determination to accept the nomination for delegate.

For members who pay dues on a cash basis, a remittance after the last business day of the month is untimely and will render the member not in good standing for that month. Williams, E15 (December 18, 1995). Article X, Section 5(c) of the IBT constitution states in part "Membership dues to Local Unions 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. Any member failing to pay his dues at such time shall not be in good standing for such month …" (emphasis supplied). Further, late payment of such dues "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 this Constitution as a condition of eligibility for office." IBT Constitution, Article X, Section 5(c). As such, even if the local union's attorney told Devilbiss he was eligible for nomination as delegate, that statement could not overrule the IBT Constitution. These facts show an interruption in Devilbiss' continuous good standing. Accordingly, we find him INELIGIBLE for nomination as delegate.

3. Mike Rudolph - Ineligible

The protest alleged that Rudolph's dues were not paid through December 2010, as required to meet the 24-month continuous good standing requirement prior to the month of the nominations meeting. Review of Rudolph's TITAN records shows that he paid cash dues to Local Union 631 and was late numerous times during the eligibility period. Rudolph's wife confirmed that that she has paid Rudolph's dues to the local union since January 2010, and that she paid his dues for July 2010 and October 2010 late. She explained that the dues were paid in both instances using her debit card on the dates noted above. These facts show an interruption in his continuous good standing. Accordingly, we find that Rudolph is INELIGIBLE for nomination as delegate.

4. Cheryl Schmit -- Eligible

The protest claimed that Schmit transferred out of the jurisdiction of Local Union 631 to another local union in November 2009, and that she was not employed at the craft for 24-months. TTIAN records for Schmit show that she is on check-off authorization with her employer, National Security Technologies (NST). Her records show a transfer to Local Union 14 on November 24, 2009 and that she returned to Local Union 631's jurisdiction on December 2, 2009. However, her TTIAN records reflect timely check-off remittances for the relevant 24-month period, including timely remittances in November and December 2009, when the transfer allegedly occurred.

Schmit explained that she was a former employee of Local Union 631 until December 2008, and that the secretary-treasurer of Local Union 14 requested her assistance with administrative matters. Schmit stated that she took leave from NST during the week of Thanksgiving and provided assistance to Local Union 14 for two days as an unpaid volunteer. Schmit maintained she never requested a transfer from Local Union 631 to Local Union 14, and believes that the administrative staff at Local Union 14 may have called Local Union 631 to complain about her presence at Local Union 14. Schmit also provided copies of her time sheets that verified she was on leave during the week of November 23-29, 2009, and pay stubs that verified earnings in November and December 2009 well in excess of her monthly dues obligation.

It is well established that members must maintain continuous good standing in the same local for the entire eligibility period. Kent. E36 (January 25, 1996). We find that Schmit has maintained continuous good standing for the entire 24-month eligibility period and that her volunteer activities at Local Union 14 during the last week of November 2009 did not constitute a transfer out of Local Union 631, where she remained on check-off authorization with her employer NST and had sufficient earnings and timely check-off remittances to Local Union 631 from NST. Accordingly, we find that Schmit is ELIGIBLE for nomination as a delegate.

5. Javon Jefferson - Eligible

The protest alleged that Jefferson became ineligible because his membership was suspended effective February 2, 2011, after the nominations meeting, as a result of charges that were recently upheld by the IBT General Executive Board (GEB). Phillipenas provided an excerpt of the decision initially rendered on April 8, 2010 by Joint Council 42 concerning charges against Jefferson, and the GEB's decision and accompanying cover letters dated January 25, 2011 to affected parties. According to the decision rendered by Joint Council 42, the newly elected executive board of Local Union 631 took office January 1, 2009. They filed charges in March 2009 against former local union officers and staff, which included Jefferson. Joint Council 42 found that Jefferson had inappropriately received overpayment of wages for two days, January 1 and 2, 2009, after the effective termination of his term in office on Wednesday, December 31, 2008. The GEB affirmed the Joint Council's decision and stated that immediate compliance with the Joint Council's decision was expected thereby revoking any stays of the Joint Council's decision. Phillipenas maintained that the suspension was imposed because Jefferson had not requested a stay of the Joint Council's decision although the local union mistakenly believed that he had. Phillipenas explained that Jefferson's suspension will remain in effect until the local union has been reimbursed for the overpayment of wages.

A review of Jefferson's TITAN records reveals that a suspension has been imposed effective February 2, 2011 with the following notation, "Per John P. suspend for non-payment of 1/01/09 and 01/02/09 overpayment per JC42 decision dated 05/03/10. Javon never requested appeal to GEB according to decision rendered by the GEB received 01/31/11." Jefferson's TITAN records also indicate that he is on check-off authorization with his employer, Republic Services, and has had timely check-off remittances for the entire 24-month eligibility period, with the exception of January and February 2009. There was no check-off remittance actually posted in January 2009. However, our investigator confirmed with his employer that he had sufficient earnings in excess of his monthly dues obligation in January and February 2009. It is well-settled that 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).

The suspension, posted on February 2, 2011, does not affect Jefferson's continuous good standing preceding his nomination. The eligibility test for nomination examines the 24-month period ending with the month before the nomination meetings, and subsequent events are not relevant to that determination. Because Jefferson maintained continuous good standing during the relevant time period, we find him ELIGIBLE for nomination as delegate to the 2011 IBT convention.[1]

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 102

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
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.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

Jany Treadwell
P.O. Box 70362
Las Vegas, NV 89170-0362
dueprocessalways@yahoo.com

Mark Devilbiss
916 Cascade Light Avenue
North Las Vegas, NV 89031
Devilbiss.family@live.com

Mike Rudolph
1129 Plaza Telle
Henderson, NV 89052
fshnnut@embarqmail.com

Cheryl Schmit
6970 Farm Road
Las Vegas, NV 89131
schmitcm@cox.net

Javon Jefferson
1217 Madison
Las Vegas, NV 89106
javon702@yahoo.com

John Phillipenas, Secretary-Treasurer
Teamsters Local Union 631
700 North Lamb Blvd.
Las Vegas, NV 89110
johnp@teamsters631.com

Mary Ann Campbell
13859 State Road E.
DeSoto, MO 63020
scdennis@aol.com

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