Protest Decisions

IN RE: WILLIAM DIXON,
Eligibility Decision 2000 EAD 59
Issued: December 12, 2000
OEA Case No. E120401AT

On Sunday, December 3, 2000, Local 173 held its nominations meeting for delegates and alternate delegates to the International Convention. On December 4, 2000 Local 173 Vice President William Dixon filed a timely pre-election protest pursuant to Article XIII, Section 2(b)(1) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") in which he claimed that David M. Grimm was ineligible to run for delegate.

Election Administrator representative Lois M. Tuttle investigated this protest.

Mr. Dixon claims that Mr. Grimm is ineligible to run for delegate because:

(1) he was suspended from the union pursuant to an April 25, 2000 decision of the Local 173 Executive Board; and

(2) as of the date of the nominations meeting, he had not paid dues for the months of June through October 2000.

Article VI, Section 1(a)(1) of the Rules provides, in relevant part, that in order to be eligible to run for any Convention delegate, alternate delegate or International officer position, one must 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.

According to his TITAN record, Mr. Grimm, a Local 173 member on checkoff, was first suspended during a period beginning February 1, 1994, and ending on December 1, 1998. During that period, neither Mr. Grimm nor his employer paid any dues. December 1998 is the first relevant month counted toward the twenty-four consecutive month period. Mr. Grimm argues that, during this period, he was on honorable withdrawal rather than suspended status. However this may be, it is unimportant. According to the TITAN record, Mr. Grimm was returned from his suspended status on December 1, 1998, after his timely payment of $33 toward his December 1998 dues and $33 for the local's reinitiation fee. Since Mr. Grimm's suspension was lifted on December 1, 2000, the start of the relevant twenty-four (24) month period, that suspension will not affect his eligibility to run for delegate.

Mr. Grimm's TITAN record also shows that neither Mr. Grimm nor his employer paid any dues for the period between June 2000 through October 2000. On August 28, 2000, a TITAN entry was made placing Mr. Grimm on suspended status between May through November 2000. On October 31, 2000, the suspension is reflected as being "returned," although no reinitiation fee is shown as being paid.

Mr. Grimm contends that although the local provided notice to him on April 25, 2000 that it was placing him on suspension for a period of twelve (12) months beginning May 1, 2000 after finding him guilty of two internal charges filed against him, he timely filed an appeal of this suspension and, in fact, obtained a temporary stay of that suspension on May 4, 2000 pending resolution of his case. These contentions were, in fact, supported by copies of letters provided by Mr. Grimm.

Mr. Grimm also stated that, at the time of the nominations meeting, he was unaware that he was behind in his dues or that his employer had not been transmitting dues to the local between June 2000 through October 2000. Since he had obtained a stay, he said, he had no reason to believe that the local would stop payment of dues while his case was pending. In late October 2000, Mr. Grimm stated, the local's president Gary L. Baker decided to drop the charges which he (Mr. Baker) had filed against Mr. Grimm before Mr. Grimm's appeal from the local's decision could be decided.

Mr. Grimm stated that he never looks at his paychecks (he only hands them to his wife after receiving them), and that it was only while discussing this case with the Election Administrator Representative on December 5, 2000 that he realized that his dues had not been deducted during the five month period in question. Mr. Grimm said that he had never been informed of any dues arrearage by the union, or of a suspension imposed as a result of such arrearage. While looking at his paychecks during the December 5, 2000 conversation with the Election Administrator, Mr. Grimm also discovered for the first time that since November 2000, his employer had been mistakenly deducting an amount of $34, the monthly dues amount, from each of his weekly paychecks and transmitting that amount to the local. As a result, at the time of his December 5, 2000 conversation with the Election Administrator Representative, Mr. Grimm was paid through January 2001. Immediately thereafter, Mr. Grimm spoke to his employer and the local's recording secretary and TITAN operator, Twila Patterson, about clearing up the error involving the too-frequent deductions from his paychecks. He also spoke with Ms. Patterson about clearing up his dues arrearage and, immediately after that conversation, paid the arrearage of $170.00 by check dated December 6, 2000.

Our investigation revealed that in late April 2000, the local's secretary-treasurer Billy R. Woods instructed Ms. Patterson to notify Mr. Grimm's employer to stop payment on his dues effective May 1, 2000 in accordance with the local's Hearing Panel's April 25, 2000 decision. Ms. Patterson did so by notice sent on or about April 28, 2000. Ms. Patterson admitted that she received a copy of the stay of Mr. Grimm's suspension shortly thereafter. She stated that, at that point, she did not send a new notice to Mr. Grimm's employer instructing his employer to resume collecting dues payments because she did not realize that this was required by the stay. Mr. Woods, the local's secretary-treasurer, also did not instruct Ms. Patterson to notify Mr. Grimm's employer to resume his payments at that time. Whether this failure was a deliberate or unintentional omission is unknown, although there is some evidence of the former. However, its effect was that, between April 28, 2000 and early November 2000, the local's orders to Mr. Grimm's employer to stop his dues payments continued in spite of the stay granted on May 4, 2000.

Moreover, on October 31, 2000, Mr. Baker sent notice to the President of the Georgia-Florida Conference of Teamsters and to Mr. Grimm that he wished to drop his charges against Mr. Grimm based upon Mr. Baker's "honest[] belie[f] that David Grimm did not realize that he may have interfered with the Business Agents [sic] duties." On November 7, 2000, the President of the Georgia-Florida Conference responded that, in accordance with Mr. Baker's letter and the non-appearance of the other party bringing charges, he would consider the charges rescinded. At this point, certainly, the local had an obligation to inform Mr. Grimm of the arrearage it had created by failing to rescind the stop-payment order and to provide him with the chance to pay the arrearage. Instead of fulfilling this obligation, Mr. Baker merely instructed Ms. Patterson to "reinstate" Mr. Grimm's dues starting in early November. As a result, Mr. Grimm's employer was instructed merely to resume collecting monthly dues rather than to deduct an amount sufficient to bring him current by the end of November.

Mr. Woods contends that, in spite of the union's lapses, Mr. Grimm should be found ineligible because he claims that Mr. Grimm "must have known," by receipt of his paycheck stubs, that his employer was not deducting dues from his paychecks between May and October 2000. Basically, Mr. Woods argues that Mr. Grimm's knowledge of the missing deductions must be imputed by his receipt of paychecks alone. We disagree. While it is surely not good business practice to routinely fail to review one's paychecks, the IBT Constitution does not require such diligence of checkoff employees. Rather, Article X, Section 5(c) of the IBT Constitution states that "a member on dues checkoff whose employer fails to make a proper deduction during any month in which the member has earnings from which the dues could have been deducted, shall not lose good standing status for that month." This is true even where the employer's failure to make proper deduction(s) is not the fault of the local, as it is in the present case.

Moreover, the same section states that, "In such an event, the Local Union shall notify the member of his employer's failure and payment shall be made by the member within thirty (30) days of said notice to retain good standing status." Clearly, the IBT Constitution puts the burden on the local, rather than its members, to identify any missed deductions and to notify its members of such missed deductions. Mr. Woods would have us shift this burden. We cannot, and will not do so, particularly when the local union was responsible for the employer's failure to make deductions in the first place.

Mr. Woods also claims that Mr. Grimm should be held accountable for failing to verify his eligibility status prior to the date of the nominations meeting, as recommended by a nominations meeting notice mailed to him on November 3, 2000. Had Mr. Grimm done so, Mr. Woods contends, Mr. Grimm would certainly have discovered any arrearage owed and had an opportunity to get his dues current before the nominations meeting on December 3, 2000.

Mr. Woods' argument is not valid. The recommendation to members to verify their eligibility prior to the nomination meeting date, as provided by the local's nominations meeting notice and stated in the Rules is just that, a recommendation only. It is provided to encourage members to facilitate the efficient and effective resolution of potential eligibility problems by seeking to verify their eligibility earlier than the date of their nominations meeting date. However, it is clearly not an obligation and imposes no penalty on members who do not seek it.

Mr. Grimm has demonstrated, through paycheck stubs, that he had sufficient earnings for the pay period in question. It is uncontested that his local was responsible for his employer's failure to make deductions during these months, at a time when Mr. Grimm had obtained a stay and the local had no basis on which to stop payments. Even after the local's president admitted that his charges were insufficiently based and that the suspension was unjustified, he still failed to take the necessary steps to inform Mr. Grimm of the arrearage that had accrued due to the local's improper actions and to afford Mr. Grimm the opportunity to set his dues straight.

Accordingly, it is the determination of the Election Administrator that Mr. Grimm is ELIGIBLE to run as a delegate. Therefore, the protest is DENIED.

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 Administrator in any such appeal. Requests for a hearing shall be made in writing and shall be served on:

Kenneth Conboy, Esq.

Latham & Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Administrator, 727 Fifteenth Street, N.W., 10^th Floor, Washington, DC 20005, Facsimile (202) 454-1501. A copy of the protest must accompany the request for a hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

J. Griffith Morgan, Atlantic Area Regional Director

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