November 6, 1998
VIA FACSIMILE & FIRST CLASS MAIL
Bob Mattingly
November 6, 1998
Page 1
Bob Mattingly
5308 Miles Avenue
Oakland, CA 94618
Chuck Mack, Sec.-Treas.
Teamsters Local Union 70
70 Hegenberger Road
Oakland, CA 94621
Hoffa Slate
c/o Patrick J. Szymanski, Esq.
Baptiste & Wilder
1150 Connecticut Avenue, NW
Suite 500
Washington, DC 20036
Bradley T. Raymond, Esq.
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
James P. Hoffa
2593 Hounds Chase
Troy, MI 4809
Duane B. Beeson, Esq.
Beeson, Tayer & Bodine
235 Pine Street, Suite 1200
San Francisco, CA 94104
Bob Mattingly
November 6, 1998
Page 1
Re: Election Office Case No. PR-334-LU70-EOH
Bob Mattingly
November 6, 1998
Page 1
Bob Mattingly, a retiree of Local Union 896, filed a pre-election protest pursuant to Article IV, Section 2(b) of the Rules for the 1995-1996 IBT Delegate and Officer Election (“Rules”) against Local Union 70.[1] The protester alleges that Local Union 70 allows its retirees to remain active members by paying dues, keeping the retirees on its roll of active members and affording these retirees the right to vote in the International Officer Rerun Election. The protester’s assertions are based on statements allegedly made by Chuck Mack, secretary-treasurer of Local Union 70, at a UPS rally, that retirees are welcome to stay in the local union and continue to pay dues. Mr. Mack also allegedly stated that Local Union 70 was one of the few local unions that allows retirees this privilege. On the basis of these statements, the protester contends that several hundred retirees may be active dues paying members and thus would be able to vote in the International Officer Rerun Election, in violation of the Rules.
Mr. Mack admits that he may have made statements at issue, but denies, as a practical matter, that hundreds of retirees in Local Union 70 continue to pay dues after retiring to remain eligible to vote in elections. Mr. Mack also points out that retirees are legitimately permitted to remain active members by working through the hiring hall of Local Union 70 as long as such members do not work in excess of 49 hours per month.
This protest was investigated by Election Office Staff Attorney Kathryn A. Naylor.
According to Margaret Delao, the TITAN operator for Local Union 70, retirees are routinely handled in the following manner. When the local union is notified that a member has retired, the local union advises the retiring member of following options: (1) complete withdrawal, (2) benevolent membership, or (3) working as a casual through the hiring hall for no more than 49 hours per month. A complete withdrawal relieves the member of any duty or responsibility to pay dues to the local union and the member is no longer entitled to any rights or privileges of membership. As a benevolent member, the retiree must pay dues of $5 each month and is entitled to certain rights or privileges, except the right to hold office or to vote. However, retirees seeking work through the hiring hall must remain active members by continuing to pay dues, albeit at a lesser rate of $36.75 versus $45.75. Members who have completely withdrawn from membership, or who are benevolent members, are designated and coded as inactive members by the local’s TITAN operator. Hiring hall members who are paying dues are designated and coded as active members by the local’s TITAN operator.
Bob Mattingly
November 6, 1998
Page 1
Ms. Delao maintains that the majority of retirees are inactive benevolent members and that the only “active” retirees in the TITAN system are working through the local’s hiring hall and paying monthly dues of $36.75. However, Ms. Delao did concede that theoretically, a retired cash paying member[2] would be coded as “active” in the TITAN system under the following scenario: the local union would not have received any notification from the member about the member’s retirement and the member would continue to pay regular dues despite retiring. As a practical matter, Ms. Delao admits that cash-payers frequently will retire and not inform the local union of their retirement; however, Ms. Delao claims that it is rare for such retirees to continue paying regular dues after retirement. Ms. Delao notes that the local union is usually contacted by such retirees and advised of their retired status when the local union suspends their membership after their dues are three months in arrears. Ms. Delao points out that the local union is advised of the retiree status for the majority of its members who are on dues check-off since the employers notify the local union when a member retires and is removed from check-off.
Ms. Delao claims that the local union issues withdrawal cards to any retiree or other member who requests a withdrawal card. However, Ms. Delao admits that the local union does not issue withdrawal cards to members who have been unemployed in the jurisdiction of the local union for six months as set forth in Article XVIII, Section 6 of the IBT Constitution.
In light of the these local union policies and practices, the investigator randomly selected and spoke with 11 members working through the hiring hall who are currently designated as active members. At least four of these members told the investigator that they had not worked or been available to work through the hall during the prior six months.[3]
The Election Officer notes that Local Union 70's policy regarding the issuance of withdrawal cards is in direct conflict with Article XVIII, Section 6 of the IBT Constitution that provides in pertinent part:
When a member becomes unemployed in the jurisdiction of the Local Union, he shall be issued an honorable withdrawal card upon his request. If no request is made, an honorable withdrawal card must be issued six (6) months after the month in which the member first becomes unemployed, if he is still unemployed at that time.
On June 24, 1998, a letter was sent to each local union, including Local Union 70, from then General Secretary-Treasurer Tom Sever. Included in the letter was Mr. Sever’s instruction that each local union update the “member’s ledger record to reflect their current standing in your Local Union” in anticipation of the pending rerun election. A second memo on the subject was sent out by Mr. Sever on July 1, 1998, which provided in part as follows:
When reviewing the membership mailing list, it is also imperative that actions be taken to ensure that each member’s ledger record contains the proper membership status code. Of particular significance is that . . . no members who are in an inactive membership status are coded with an active membership code - this would be applicable to members who should be in a withdrawal or suspended status; or, the correct identification of an individual in a non-membership status.
Bob Mattingly
November 6, 1998
Page 1
The investigator’s preliminary sampling of hiring hall members that found four of the eleven members polled are improperly coded as active and thereby currently eligible to vote as long as they are paid through the month of November, 1998. Thus, the Election Officer has a reasonable basis to believe that a significant number of hiring hall members may be improperly coded. Therefore, the protest is GRANTED.
When the Election Officer determines that the Rules have been violated, he “may take whatever remedial action is appropriate.” Article XIV, Section 4. In fashioning the appropriate remedy, the Election Officer views the nature and seriousness of the violation, as well as its potential for interfering with the election process.
The Election Officer orders Local Union 70 to take the following steps to rectify the situation.
(1) Local Union 70 shall review the status of all active hiring hall members and shall re-code respective members as inactive in accordance with Article XVIII, Section 6 of the IBT Constitution and the general-secretary treasurer’s instructions noted above. As part of this process, Local Union 70 shall consult all applicable records/data that indicate a member’s retired status, whether a member has been available to work or has worked during the past six months through the hiring hall.
(2) Mr. Mack shall provide to the Election Officer an affidavit attesting to all steps taken by the local union to review the status of all hiring hall members; the names of members who were re-coded as inactive and sent withdrawal cards; and when and how many withdrawal cards were issued.
(3) Local Union 70 shall complete its review of the status of all hiring hall members and submit Mr. Mack’s affidavit to the Election Officer no later than Wednesday,
November 18, 1998.
An order of the Election Officer, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. In re Lopez, 96 - Elec. App. - 73 (KC) (February 13, 1996).
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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:
Bob Mattingly
November 6, 1998
Page 1
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 Officer, 444 North Capitol Street, NW, Suite 445, Washington, DC 20001, Facsimile (202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Michael G. Cherkasky
Election Officer
cc: Kenneth Conboy, Election Appeals Master
[1]The Election Officer would not normally entertain the protest filed by Mr. Mattingly due to his retired status. See Branch et al., CONV-22-IBT et seq. (July 18, 1996). The protested conduct, however, concerns whether individuals not eligible to vote under the Rules are in a membership status that would allow them improperly to vote. Thus, the Election Officer chose to investigate the allegations to determine the eligibility issue. See Rules Art. XIV, sec.4.
[2]A “cash paying member” is a member who pays their dues in cash because the union’s collective bargaining agreement with the employer does not contain a dues check-off clause or the employee has not signed a dues check-off authorization card.
[3]Of the individuals contacted, each stated that although they currently pay dues, they have not worked for varying periods including ten (10) years, one (1) year, six (6) months and since the Spring of 1997, respectively.