IN RE: ELIGIBILITY OF RICK HICKS, TED BUNSTINE, MICHAEL GONZALES, DAVE FASANO, DAVID JACOBSEN, BRIAN DAVIS, JEFF ANDERSON, GARY BOLEN, JIM CONNAUGHTON, RAY GREEN LAUNA RUNNING, and CARL GASCA.
Protest Decision 2005 ESD 30
Issued: December 5, 2005
OES Case No. E-05-003-112205-FW
Jim Cramer, a member of Local Union 174, filed a pre-election protest pursuant to Article XIII, Section 2 of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that several members seeking to be nominated as delegates and alternate delegates to the 2006 IBT Convention are not, in fact, eligible for those positions.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
At Local 174's nomination meeting to be held January 12, 2006 the following members plan to declare their candidacies as a slate: Rick Hicks, Ted Bunstine, David Jacobsen, Michael Gonzales, Dave Fasano, Brian Davis, Jeff Anderson, Gary Bolen, Jim Connaughton, Ray Green, Launa Running, and Carl Gasca. The protestor alleged each of these candidates is ineligible.
TITAN records demonstrated that all of these candidates, except for Michael Gonzalez, had paid their dues for the twenty-four consecutive months to establish continuous good standing as required by Article VI, Section 1 of the Rules. Further, TITAN identifies each of these candidates as employed by an employer under contract with Local Union 174 or directly by the Local Union; therefore, each appears to satisfy the "working at the craft" requirement of the Rules.
Regarding Michael Gonzalez, TITAN shows that he paid his January 2004 dues in March which, absent further evidence, would reflect a break in continuous good standing and render Gonzales ineligible. Investigation showed that Gonzales has paid his dues by check-off authorization from 2003 through the present. In August 2003, Gonzales left his job at K & L Beverage to take employment with the local union. Gonzales was on check-off at K & L, and went immediately to check-off as an employee of the union. In February 2004, Gonzales went back to work at K & L and immediately returned to check-off from that employer. Gonzales' January 2004 dues were paid via check-off in March 2004. TITAN shows no record of employment for Gonzales in January 2004.
Gonzales told our investigator that he was paid for forty hours at the lecal union in January 2004, an amount sufficient to fund his monthly dues obligation. He stated further that he never requested to be taken off check-off, and his dues should have been deducted by his employer, which in this case was the local itself. Gonzales provided a printout from the Western Conference of Teamsters Pension Trust showing his plan coverage for 2004; it verifies Gonzales' statement that he was paid for forty hours in January 2004.
Deborah Rockefeller, bookkeeper of Local 174, denies that Gonzales worked in January 2004. However, she agrees that he was paid 8 hours holiday pay, at a rate of $28.91, for January 1. As such, we need not resolve the discrepancy between Gonzales and the local union's records, as both indicate that Gonzales had sufficient earnings in January 2004 to fund his dues obligation for that month.
Protestor Cramer provided no additional evidence demonstrating that any of the candidates were ineligible.
Analysis
A member will retain good standing under Article VI, Section 1 of the Rules even though his dues are remitted late or not at all in a given month, provided that he signed a check-off and had sufficient earnings in that month from which the employer could have deducted dues. IBT Constitution Article X, Section 5; Dunn EAD 9 (October 31, 1995). When a member has sufficient earnings but the employer fails to deduct and remit dues, the local's remedy is to notify the member of his employer's failure and require payment within thirty days. IBT Constitution Article X, Section 5. The notice must be in writing. Justus, E86 (February 20, 1996), aff'd, 96 EAM 107 (February 28, 1996).
In the present case, Gonzales had sufficient earnings to fund his dues payment in January 2004. In addition, Gonzales was never notified by the local of the local's failure to deduct such dues. Instead, the local apparently corrected its error by deducting the January dues in March. As such, Gonzales' failure to pay January 2004 dues timely was not the fault of Gonzales, but rather that of his employer, the local itself. Under these circumstances, Gonzales retains his status as a member in good standing and therefore is eligible to run for delegate or alternate delegate.
Accordingly, we DENY this protest in all respects.
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:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: (212) 751-4864
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, 1725 K Street, Suite 1400, Washington, DC 20006 all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005 ESD 29
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Jim Cramer
Local 174
13814 59th Avenue, SE
Everett, WA 98208
Rick Hicks
13623 SE 267th Street
Kent, WA 98042
Ted Bunstine
15557 Abeworth
Seattle, WA 98133
Michael Gonzales
4060 9th Avenue NE # 518
Seattle, WA 98105
Dave Fasano
3113 45th Avenue
Tacoma, WA 98422
David Jacobsen
4234 S 247th Street
Kent, WA 98032
Brian Davis
6215 27th Street NE
Tacoma, WA 98422
Jeff Anderson
3525 112th Place
Everett, WA 98208
Gary Bolen
P.O. Box 187
Maple Valley, WA 98038
Jim Connaughton
11621 13th Avenue
Seattle, WA 98146
Launa Running
25312 SE 184th Street
Maple valley, WA 98038
Ray Green
P.O. Box 111594
Tacoma, WA 98411
Carl Gasca
7304 Seward Park Avenue South
Seattle, WA 98118
Steven Newmark
Office of the Election Supervisor for the
International Brotherhood of Teamsters
1725 K Street, NW, Suite 1400
Washington, DC 20005
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com