February 14, 1996
VIA UPS OVERNIGHT
Joan F. Ginter
February 14, 1996
Page 1
Joan F. Ginter
Route 5, Box 377
Monticello, IN 47960
Nick Johnson
1701 Cadillac Drive, E.
Kokomo, IN 46902
Frank J. Wsol, Secretary-Treasurer
Teamsters Local Union 710
4217 S. Halsted Street
Chicago, IL 60609
Joan F. Ginter
February 14, 1996
Page 1
Re: Election Office Case No. E-069-LU710-EOH
Gentlepersons:
Nicholas Johnson was nominated to be a candidate for alternate delegate to the Inter-national convention at Local Union 710's nomination meeting on January 28, 1996. By letter received by the Election Officer on January 29, 1996, Joan F. Ginter protests Mr. Johnson's eligibility to run for alternate delegate. In her protest letter, Ms. Ginter provides no grounds for her protest nor does she level any specific allegation.
Article VII, Section 1 of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules") provides that to be eligible to run for delegate to the International convention, a member 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.
Joan F. Ginter
February 14, 1996
Page 1
Under Article X, Section 5(c) of the IBT Constitution, membership dues must be paid "on or before the last business day" of the month in which they are due. The section further provides, however, that a member participating in 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."
The investigation revealed that Mr. Johnson was terminated by his employer, United Parcel Service (“UPS”) on May 13, 1994. Mr. Johnson filed a grievance concerning his dismissal. On July 23, 1995, the grievance was resolved in an arbitration decision which ordered that Mr. Johnson be reinstated and that he be awarded back pay for the period from July 4, 1994 to July 23, 1995. The arbitration decision, however, directed that from May 13 to July 3, 1994 Mr. Johnson was to be considered suspended without pay. Mr. Johnson returned to work at UPS on July 31, 1995.
Prior to his dismissal, Mr. Johnson’s dues were checked off in a timely manner. It was the employer’s practice to deduct from Mr. Johnson’s earnings the dues for the month following that in which the deduction was made. For example, Mr. Johnson’s May 1994 dues were deducted in April 1994, his April 1994 deducted in March 1994, etc. These dues were then remitted to the local union in the month in which they were due.
As a result of this policy, UPS deducted a portion of Mr. Johnson’s June 1994 dues from the wages he earned during the days he worked in May 1994 prior to his dismissal on May 13. As a result, UPS remitted $28 to the local union on June 17, 1994, $7 less than the $35 required according to Mr. Johnson’s dues rate at the time.
The Election Officer has previously determined that, if a member receives back pay as a result of a grievance or arbitration settlement, that individual is deemed to have earnings in the months covered by the back-pay award. See Stone, E-020-LU745-EOH (January 18, 1996), aff’d, 96 - Elec. App. - 63 (KC). So long as the back-pay award provides sufficient earnings from which dues could be deducted in the months to which it applies, the individual does not lose good standing. Id. The month of June 1994 was not included in Mr. Johnson’s back-pay award, so Mr. Johnson had no pay from which dues could be deducted in June 1994.
On July 1, 1994, Mr. Johnson received a check from UPS for 122.05 hours of vacation pay that had accrued prior to May 13, 1994. The record indicates that $63 in dues were deducted from this payment. This deduction was remitted to the local union on August 17, 1994. This remittance covered the balance of Mr. Johnson’s June 1994 dues.
Mr. Johnson’s receipt of vacation pay does not alter the fact that he had no wages in June 1994. At the time UPS paid Mr. Johnson his accrued vacation, the employer considered Mr. Johnson’s employment to be terminated. UPS was obligated at that time to disburse to Mr. Johnson any funds owed to him under accrued benefit plans. The arbitration decision, however, directed that Mr. Johnson was not properly dismissed from employment. Instead, according to the decision, the record would reflect that he had been suspended without pay
Joan F. Ginter
February 14, 1996
Page 1
from May 13, 1994 to July 3, 1994. UPS then becomes liable for the pay Mr. Johnson should have received from July 4, 1994 to July 23, 1995.
The solution promulgated in the arbitration means that, not only should Mr. Johnson have been employed and received pay after July 4, 1994, but he also should not have received his accrued vacation pay. Since he was not properly dismissed, the employer erred in paying off the balance of Mr. Johnson’s vacation pay. Instead, as a suspended employee,
Mr. Johnson should have received no vacation pay until after the expiration of his suspension on July 3, 1994. The same reasoning that allows Mr. Johnson’s back pay to restore retroactively his good standing also indicates that vacation pay issued in error should not be relevant to a determination of his good standing. As a result, Mr. Johnson has not maintained 24 months’ continuous good standing prior to his nomination.
Accordingly, it is the determination of the Election Officer that Mr. Johnson is not eligible to run for alternate delegate to the International constitution.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham and 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 Officer, 400 North Capitol Street, Suite 855, Washington, D.C. 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Julie E. Hamos, Regional Coordinator