Protest Decisions

IN RE: ELIGIBILITY OF VICTOR ROSS, VICKY BAGBY, MIKE DRUMMOND, and ROBERT WOOD, Local Union 728.
Protest Decision 2011 ESD 110
Issued: February 14, 2011
OES Case No: E-031-012011-SO

Eric Robertson, a member of Local Union 728 and candidate for delegate, filed a timely 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 Victor Ross and Vicky Michelle Bagby were ineligible for nomination as delegates to the 2011 IBT convention. The protest further challenged the nominations of Mike Drummond and Robert Wood; these members were either nominated or seconded by Bagby, whom the protest alleged was ineligible to do so.

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 728 held its nominations meeting on January 15, 2011. Accordingly, the 24 month period during which candidates must be in continuous good standing in order to be eligible for nomination as delegates ran from January 2009 through December 2010. 

1.       Victor Ross - Eligible

TITAN records for Ross show his dues were paid by Local Union 728 from January 2009 through August 2010. In addition, the records indicate that Ross paid his dues on a cash basis on October 18, 2010, November 8, 2010 and December 1, 2010. Ross' TITAN also shows a $500 service fee payment he made on September 10, 2010, and much smaller weekly service fee payments thereafter that carry the notation "Wanderlust."

Ross is a steward at YRC. Local Union 728 pays the dues for its stewards. In early September 2010, Ross stopped working at YRC temporarily and began working on a film production, Wanderlust; he did not serve as a steward on the movie work and became responsible for paying his dues either by cash or pursuant to check-off authorization. To obtain the movie work, Ross completed the movie referral list application at the local union in late August 2010 and paid the requisite $500 service fee. However, Ross told our investigator that he worked at YRC and served as a steward during the week of August 30 - September 3, 2010; he understood that the local union would pay his September dues because he was a steward for a few days that month. To prove that he worked at YRC in September, Ross provided a copy of his pay stub that showed he worked 59.17 regular hours and 19.23 overtime hours for the week August 30 - September 3. The paid hours on the stub exceeded what Ross possibly could have worked in the portion of the pay period that fell in August and therefore demonstrated that he worked for YRC in September 2010. Ross also provided copies of his pay stubs from the Wanderlust film production that indicated that he began working that job on September 9, 2010.

The local union's TITAN operator confirmed that when stewards leave their regular employment to work on film productions, the local union discontinues paying their steward dues until they resume working for their regular employer. During the interim period, the member is responsible for paying his/her dues. The TITAN operator provided copies of the referral list application Ross completed and the receipt Ross received when he paid the $500 fee to be placed on the list. Both were dated August 31, 2010.

The TITAN operator stated that she returned from vacation on September 7, 2010, the day after Labor Day. She posted Ross' payment of the $500 referral fee on TITAN on September 10, 2010, as reflected on his TITAN ledger, and at the same time placed him on the list for cash payers effective September 1, 2010, since Ross indicated on the application that he was not working full-time for YRC.[1] The TITAN operator also provided a copy of the check-off authorization and assignment that Ross signed on September 9, 2010, authorizing 3% of his gross wages from work on any movies to be remitted to the local union. The TITAN operator explained that the weekly service fee payments posted on Ross' TITAN under the Wanderlust movie represent those 3% payments.

On these facts, we find that Local Union 728 was responsible for paying Ross' steward dues for September 2010 because Ross worked for YRC during the first week of that month. Although Ross stated in the referral application he completed August 31, 2010 that he was not employed full-time with his employer, the fact remains that he worked for YRC during September 2010 and as a result, his steward dues for September 2010 should have been paid by the local union.

Accordingly, given this holding, Ross' cash dues payments in October, November and December, 2010 were timely made for those three months and show no interruption in his continuous good standing. For members who pay dues on a cash basis, a remittance on or before the last business day of the month is timely and will make the member in good standing for that month. Eligibility of Sherard, 2011 ESD 67 (January 10, 2011), aff'd, 11 EAM 13 (January 26, 2011). Accordingly, we find Ross ELIGIBLE for nomination as a delegate.

2.       Vickie Bagby - Eligible

Bagby's TITAN shows that in January 2009, Local Union 728 paid her dues because she was a steward. In the same month, Roadway Express, Bagby's employer, deducted union dues from her January earnings, a payment that was posted to her record on February 5, 2009. The TITAN operator told our investigator that Roadway made check-off remittances for all of the local union's stewards for January 2009. This was a mistake, because the local union had already paid the dues of all their stewards, including Bagby. Accordingly, the local union issued refund checks to all stewards for the January dues Roadway deducted from their pay; these refunds were posted to TITAN on February 9, 2009.

In February 2009, Bagby was no longer a steward and therefore reverted to paying her dues by check-off authorization with Roadway Express. Despite this authorization, the employer did not deduct and remit dues for her in February 2009 even though she had net earnings that exceeded her monthly dues obligation for that month. Thereafter, Bagby's TITAN reflects monthly check-off remittances that were posted in the months March 2009 through March 2010. However, the ledger shows that as of March 2010, Bagby's dues were paid through February 2010 as a result of the refund check issued in February 2009 and the failure of Roadway to check-off her dues for that month.

Bagby was on disability and had no earnings from YRC[2] for the period April 2010 through June 2010; she paid her dues in cash during those months on April 13, May 14, and June 8. The TITAN further indicates that the May 14, 2010 payment was for two months' dues. According to the TITAN operator, Bagby stated at the time she made the May 14 payment that she had never received the February 9, 2009 refund check that was posted to her ledger; she requested that the refund debit be reversed and applied to her dues obligation. The TITAN operator confirmed with the local union bookkeeper that Bagby's refund check had not been cashed, so the check was voided and the TITAN operator applied the amount of that check to Bagby's dues.

The effect of voiding the dues refund from February 2009 was to make Bagby timely in her dues obligations through March 2010, even though the TITAN ledger showed her a month behind at that time with a paid-through month of February 2010. Further, the timely cash payments in April, May (two months' dues) and June 2010 paid her dues through July 2010.

Thereafter, Bagby had check-off remittances for August through December 2010. Although the postings for those months were untimely, Bagby's pay stubs demonstrated she had sufficient earnings to fund her dues obligation in each of those months. 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).

Accordingly, we find Bagby maintained 24 months of continuous good standing prior to the month of nominations and therefore is ELIGIBLE for nomination as a delegate to the 2011 IBT convention.

3.       Mike Drummond and Robert Wood - Eligible

The protest further alleged that the nominations of Drummond and Wood as delegates were invalid because Bagby nominated Drummond and seconded Wood's nomination. To be eligible to nominate or second a nomination, a member must be "in good standing, with his/her dues paid through the month prior to the nominations meeting." Article II, Section 5(h). As noted above, Bagby's dues were paid through December 2010 at the time of the January 2011 nominations meeting; she was therefore ELIGIBLE to nominate Drummond and second the nomination of Wood.

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 110

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
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

Eric Robertson
375 Spence Road
Fairburn, GA 30213
e_robertson@yahoo.com

Victor Ross
3640 South Fulton Ave., #1437
Hapeville, GA 30354
quikrv@bellsouth.net

Vickie Bagby
2616 Downing Park Drive
Conyers, GA 30094

Mike Drummond
280 Birkdale Drive
Fayetteville, GA 30215
ma74931@bellsouth.net

Robert Wood
3321 Inns Brook
Snellville, GA 30039

Jimi Richards, Secretary-Treasurer
Teamsters Local Union 728
2540 Lakewood Avenue, SW
Atlanta, GA 30315
jimi_richards@bellsouth.net

Dolores Hall
OES Southern Regional Director
1000 Belmont Place
Metairie, LA 70001
Hall1000@cox.net

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, Suite. 210
Ann Arbor, MI 48104
ellisonesq@aol.com