Protest Decisions

OFFICE OF THE ELECTION SUPERVISOR

for the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS

IN RE: ELIGIBILITY OF                          )           Protest Decision 2016 ESD 100

            JEFFREY NORMAND,                  )           Issued: February 3, 2016

                                                                        )           OES Case No. E-134-013116-ME

            Local Union 100.                               )                      

____________________________________)

            Jeffrey Normand, member of Local Union 100, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2015-2016 IBT International Union Delegate and Officer Election (“Rules”).  The protest challenged the decision of the Office of the Election Supervisor that declined to verify Normand’s eligibility for nomination.  

            Election Supervisor representative Jo Pressler 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.”

The nominations meeting for Local Union 100’s delegates and alternate delegates election will be held February 4, 2016.  Therefore, the 24-month period during which candidates must be in continuous good standing in order to be eligible for nomination ran from February 2014 through January 2016.  Protestor Normand asserted that he is eligible for delegate because he maintained continuous good standing during this span. 

To verify Normand’s eligibility during this period, we reviewed TITAN records for dues remitted on his behalf.  Normand’s TITAN shows that he was a cash dues payer employed by UPS.  During the eligibility period we examined, the TITAN record shows that Normand made a cash dues payment of twelve months of dues in December 2013, paying his dues obligation through December 2014.  His next dues payment was six months of dues paid on February 13, 2015, paying his dues through June 2015.  He paid an additional six months of dues on July 20, 2015, paying his dues through December 2015.  His most recent payment was made January 11, 2016, paying him through June 2016. 

Under Article X, Section 5 of the IBT constitution, cash dues payments must be made to the local union on or before the last business day of the month in order to achieve good standing for that month.  Payment of dues by a cash dues payer after the due date does not restore good standing for purposes of computing the “continuous good standing” required to be eligible for office under Article II, Section 4 of the IBT constitution or Article VI of the Rules.  The IBT constitution permits local unions to provide in bylaws for payment of quarterly dues, but mandates that the member, “to be in good standing for each month of the quarter, must pay his dues for each quarter on or before the last business day of the first month of the quarter.”  IBT constitution, Article X, Section 5(d).

Normand paid his dues in the month they were due or in advance of the month they were due during the entire eligibility period, except for January 2015.  His dues payment for that month was made February 13, 2015, a date he concedes.  This late payment for January 2015 constituted an interruption in his 24 months of continuous good standing, rendering him ineligible for nomination.  When Normand requested that OES verify his eligibility for nomination pursuant to the procedure articulated in Article VI, Section 4, OES examined his dues payment record and issued a determination holding him ineligible for nomination because of the late payment of dues for January 2015. 

Both Normand and local union secretary treasurer Sam Bucalo challenge this determination.  Each argues that Normand was on check-off even though a cash dues payer.  They contend that Normand’s employer, UPS, should have deducted and remitted dues in January 2015 when he failed to make a timely cash payment by the last business day of that month, and that UPS’s failure to deduct and remit should not interrupt Normand’s continuous good standing. 

Were we to find that Normand was on valid check-off in January 2015, the employer’s failure to deduct and remit dues for him would not interrupt his continuous good standing.  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). 

Investigation shows, however, that Normand was not on check-off in January 2015. 

Normand, a UPS employee hired in 1977, was for many years on check-off.  However, his TITAN “Member History” record indicates that on January 11, 2010, he changed from a check-off member to a cash dues payer.  At that time, Normand made his first large cash dues payment, paying 12 months of dues; the payment was posted to his dues record on January 12, 2010.  Sarah McFarland, long time office manager of Local Union 100, told our investigator that she recalled Normand requesting to be changed from check-off to cash status; the TITAN history entry pinpoints the date, and it coincides with a large advance payment of dues.  McFarland stated that a member seeking to go on check-off must sign a check-off authorization.  However, a member seeking to change from check-off to cash may do so merely through oral request that is documented in the TITAN Member History.  Normand stated he does not recall requesting to convert from check-off to cash, but he does not deny doing so.  He stated further that he began making large advance lump sum payments of dues because he perceived a tax advantage in doing so.

The last check-off dues payment recorded to Normand’s dues record was January 15, 2010, just four days after the date Normand’s status was changed in TITAN from check-off to cash.  The posting date for the last check-off from Normand’s pay indicates that his instructions to change from check-off to cash came too late to stop the January dues deduction UPS made.  Following that remittance, however, no further check-off payments were recorded in Normand’s dues record.  Thereafter, most of Normand’s dues payments were for large lump sums of six months or twelve months at a time; however, some were for shorter periods. 

Occasionally, Normand was late with a month or more of dues.  Thus, a three-month payment posted March 11, 2011 paid for February, March and April 2011 dues and was late for February.  Another three-month payment posted June 7, 2011 paid for May, June and July 2011 dues, late for May.  A five-month payment posted October 13, 2011 paid for August, September, October, November and December 2011, late for August and September.  In none of these instances where Normand was late with a cash dues payment was a check-off payment made by UPS to cover the delinquency.  According to McFarland at the union, this was because Normand had changed from check-off to cash, and the employer no longer deducted dues from Normand’s pay.

The next month Normand missed was January 2015, discussed above.  Again, no check-off payment was made.

Given this evidentiary record, we conclude that Normand was not on check-off because he requested to become a cash dues payer, a status he has maintained from January 2010 through the present.

Normand argues in his protest that he could not permissibly be anything other than a check-off dues payer under the UPS-Teamsters collective bargaining agreement, contending that all UPS employees are required to pay dues by check-off.[1]  This unusual argument flies in the face of a six year history in which Normand has tendered and the local union has accepted cash dues payments, payments that are expressly authorized by the IBT constitution. 

The argument also fails to address this practical problem: under the IBT constitution a cash dues payer is deemed in good standing if he pays his dues as late as the close of business on the last business day of month, yet Normand urges that the local union should have billed UPS for Normand’s dues for the month he missed, January 2015, even though the local union did not know Normand would miss that month until the month expired. 

Moreover, the contract language does not support Normand’s argument.  Under the contract, UPS is obligated “to deduct from the pay of all employees covered by this agreement” the dues of the local union having jurisdiction.  That obligation, however, is shifted in the next sentence to the local union, requiring it to “provide the Employer a weekly amount to be deducted from each employee.”  Local Union 100 complies with this provision by preparing and sending weekly to UPS a list of employees from whom dues are to be deducted, together with the amount for each employee.  This list Local Union 100 prepares and submits to UPS has not included Normand since the time his status changed from check-off to cash dues payer at his request in January 2010.  As a consequence, UPS has made no deductions from Normand’s pay since that time.  Were it otherwise and Normand remained on check-off, as he now contends he was all along, the local union would have billed UPS weekly for his dues while showing him already paid, with the result that Normand would have paid double dues. 

The collective bargaining agreement has a union security provision requiring existing members such as Normand to maintain membership.  However, the contract does not require that existing check-off members maintain check-off, and Normand was within his right under the contract to opt out of check-off and become a cash dues payer. 

Bucalo, the local union secretary treasurer, argues that the TITAN operator made a mistake in not billing UPS for Normand’s dues in January 2015, the month Normand was delinquent.  This is wrong.  Normand made a mistake by not paying his dues in January 2015 timely.

The efforts of Normand and Bucalo to shift blame for Normand’s mistake to the TITAN operator notwithstanding, Normand has forfeited the continuous good standing the IBT constitution and the Rules require to be eligible for nomination.  Accordingly, we DENY the protest and find Normand INELIGIBLE for nomination in Local Union 100’s delegates and alternate delegates election.

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:

Kathleen A. Roberts

Election Appeals Master

JAMS

620 Eighth Avenue, 34^th floor

New York, NY 10018

kroberts@jamsadr.com

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, 1050 17^th Street, N.W., Suite 375, Washington, D.C. 20036, all within the time prescribed above.  A copy of the protest must accompany the request for hearing.

                                                                        Richard W. Mark

                                                                        Election Supervisor

cc:        Kathleen A. Roberts

            2016 ESD 100

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