November 8, 1995
VIA UPS OVERNIGHT
Kirk A. Stephenson
November 8, 1995
Page 1
Kirk A. Stephenson
332 N. 102nd St.
Seattle, WA 98133
Jon L. Rabine, Secretary-Treasurer
Teamsters Local Union 763
553 John Street
Seattle, WA 98109
Paul Alan Levy
Public Citizen Litigation Group
1600 20th St., N.W.
Washington, DC 20009
Kirk A. Stephenson
November 8, 1995
Page 1
Re: Election Office Case No. E-011-LU763-EOH
Protest of Kirk A. Stephenson’s Eligibility to Run for Delegate
Gentlemen:
By notice dated October 17, 1995, Kirk A. Stephenson was declared ineligible to run for delegate or alternate delegate to the 1996 International Convention.
In order to be eligible to run for delegate to the International Convention, a member must be in continuous good standing with his local union, with his dues paid to the local union for a period of 24 consecutive months prior to the month of nomination with no interruption in active membership due to suspensions, expulsions, withdrawals, transfers or failure to pay fines or assessments and be employed at the craft within the jurisdiction of the local union for a period of 24 consecutive months prior to the month of nomination. Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules"), Article VII,
Section 1(a)(1) and (2).
Mr. Stephenson requested eligibility verification from the Election Officer.
Mr. Stephenson was declared ineligible because he failed to pay his dues from January 1994 to August 1994. Through his attorney, Mr. Stephenson filed a timely protest to the ruling of the Election Officer, dated October 25, 1995.
Kirk A. Stephenson
November 8, 1995
Page 1
In his protest, Mr. Stephenson contends that he did not pay dues from January to June 1994 because he had been terminated from his position with Laidlaw Transportation, Inc. (“employer”). According to the protester, he pursued a grievance against the employer and was successful. He was reinstated with full back pay in June 1994. Mr. Stephenson contends that he did not begin paying dues immediately after his reinstatement because, as a school bus driver, he does not work in July or August. As a result, he had no earnings from which dues could be deducted until September 1994.
The protester argues that his failure to pay dues between January 1994 and June 1994 does not affect his eligibility because he was actively pursuing an unresolved grievance to obtain reinstatement with the employer and was, as a result, exempt from paying dues under Article VII, Section 2(b) of the Rules. The protester further contends that his failure to pay dues between July 1994 and August 1994 does not affect his eligibility because, as a seasonal worker, he is not required to pay dues during the summer. He contends his local union had a “nondiscriminatory policy” to excuse school bus drivers from paying dues during summer recess, as allowed by Article VII, Section 2(d) of the Rules. In support of this contention, the protester states that school bus drivers who do not pay dues in the summer are eligible to hold local union office.
Article VII, Section 2 of the Rules provides in relevant part:
(b) The active employment at the craft requirement may be excused by unemployment if, for the period of unemployment, the member was actively seeking and available for employment in the craft and not working outside the craft during such period of unemployment, or by active pursuit of an unresolved grievance or other legal action challenging suspension or discharge.
(c) The requirements of working in the jurisdiction may be excused or modified in the case of seasonal workers within the seasonal food industry.
(d) The requirements of continuous good standing and working in the jurisdiction may be excused or modified in the case of any officer, employee or member on leave of absence granted with the approval of the Local Union Executive Board on a nondiscriminatory basis.
The Protester's Termination and Reinstatement
Kirk A. Stephenson
November 8, 1995
Page 1
Mr. Stephenson's reliance on Article VII, Section 2(b) is misplaced. The plain language of the Rules indicates that active pursuit of an unresolved grievance excuses the requirement of Article VII, Section 1(a)(2) that a candidate be employed at a craft under the jurisdiction of his local union. Active pursuit of an unresolved protest does not, however, excuse a potential candidate from fulfilling the requirements of Article VII, Section 1(a)(1), which clearly states that in order to be eligible a member must pay his dues in a timely fashion for 24 consecutive months prior to the month of nomination.
An examination of the TITAN record discloses that Mr. Stephenson was on cash-dues payment prior to and following the period of his suspension from employment.
Mr. Stephenson did not pay dues during the period of his suspension. Additionally, while the protester claims he was reinstated with full pay, the TITAN record reflects that he did not pay his back dues in June 1994 when his termination was overturned.[1] This failure to pay dues makes the protester ineligible to run for delegate under the Rules. See McGinnis, Case
No. E-175-LU710-CHI (January 25, 1991) (a member actively pursuing a grievance to reverse his discharge remained eligible in part because he continued to pay his dues in a timely fashion); West, Case No. P-699-LU996-RMT (March 28, 1991) (a member remained eligible while not employed in the craft because he was actively pursuing a grievance to regain his position in the craft and he attempted to tender his dues to his local union).
Seasonal-Worker Argument
The protester argues that school bus drivers who do not work during summer recess should be extended the same eligibility requirements exception given seasonal food workers under the Rules. According to the protester, a failure to apply this exception to school bus drivers would be “arbitrary and discriminatory” and would result in the ineligibility of all seasonal bus drivers in the protester's local union.
The protester is, in essence, requesting that the Election Officer change Article VII, Section 2(c) to read that any seasonal worker (as opposed to one in the seasonal food industry) is excused from the requirements of working in the jurisdiction of the local union for 24 consecutive months. While the protester is correct in asserting that the current Rules disqualify seasonal workers outside of the food industry who do not pay dues while not working, the protester's request to change the Rules is untimely and inappropriate.
Prior to the commencement of the 1995-1996 election process, a period of time was delimited for comment and debate on the proposed Rules. Notice was provided in the IBT magazine, and a copy of the proposed Rules was provided to any IBT member requesting one. During this period, the comments of members and local unions were solicited. As the Election Appeals Master observed when a protester requested the adoption of a narrower definition than that provided in the Rules, “It is improper . . . to attempt to rewrite the Rules at the present time, after the Rules have been debated and formally adopted and promulgated by the Court.” In Re: Jagodzinski, 95 - Elec. App. - 22 (KC) (October 10, 1995). The protester's attempt to
Kirk A. Stephenson
November 8, 1995
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broaden the definition of excused seasonal workers in Article VII, Section 2(c) is equally improper here.
The Rules do not provide the exception that seasonal school bus drivers need not pay dues during the summer months to remain eligible to run for delegate. See Bryant, Case
No. E-206-LU710-CHI (January 28, 1991). Thus, Mr. Stephenson's failure to pay dues during July and August of 1994 renders him ineligible.
“Nondiscriminatory Policy” Argument
The protester claims that his local union had a “nondiscriminatory policy,” as defined by Article VII, Section 2(d), that preserved the eligibility of school bus drivers even though they paid no dues during the summer months. The Rules section relied upon here, however, requires a “leave of absence granted with the approval of the local union executive board on a nondiscriminatory basis.” No evidence has been provided that Local Union 763's Executive Board has devised a plan whereby school bus drivers are given leaves of absence during the summer yet remain eligible to run for delegate. The fact that seasonal drivers in Local
Union 763 remain eligible to hold local union office is irrelevant to a determination of delegate eligibility. The determination of eligibility for delegate is governed by the Rules, whereas the requirements for eligibility for local union office are determined, in part, by local union bylaws. The plain language of the Rules requires an explicit leave of absence approved by the executive board. The protester has failed to demonstrate that such a leave of absence was granted here.
Accordingly, it is the determination of the Election Officer that Mr. Stephenson is ineligible to run for delegate to the IBT International Convention, and his protest is DENIED.
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
New York, NY 10022
Fax (212) 751-4864
Kirk A. Stephenson
November 8, 1995
Page 1
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
Christine Mrak, Regional Coordinator
[1]If the protester had been on dues checkoff, the argument could be made that, when back pay was awarded, the employer was responsible to deduct the protester's back dues and pay them to the local union. In this case, however, the protester made cash dues payments, so the employer was not responsible for deducting dues.