IN RE: ELIGIBILITY OF KIMBERLY HART, WAYNE ALTSHULER, THOMAS HART, and ANTOINE LAMBERT, Local Union 97.
Protest Decision 2006 ESD 93
Issued: February 27, 2006
OES Case No. E-06-025-020206-HQ
John Gerow, member and president of Local Union 97, filed an eligibility protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that Kimberly Hart, Wayne Altshuler, Thomas Hart and Antoine Lambert are ineligible for election as delegates or alternate delegates to the 2006 IBT Convention under the Rules.
Election Supervisor representative Steven R. Newmark investigated this protest.
Findings of Fact
At the nomination meeting held January 31, 2006, Kimberly Hart, Altshuler, Thomas Hart and Lambert were nominated for delegate or alternate delegate. The protest alleges that Kimberly Hart and Altshuler are ineligible because they are "fair share" members. The protest further alleges that Thomas Hart and Lambert fail to satisfy the 24-month continuous good standing requirement.
TITAN records of Kimberly Hart and Altshuler show that they pay "fair share" dues, an amount roughly equivalent to 50% of full dues, and have done so for the duration of the eligibility period. Neither disputed this fact to our investigator.
The TITAN record for Thomas Hart shows that he paid full monthly dues pursuant to check-off authorization in each month in the 24-month eligibility period. However, no dues were posted to his record for four consecutive months from October 1998 through January 1999. Further, the record shows that a dues refund equal to four and one-half months dues was made to him in December 2002. The combination of these two facts is that, although Hart paid full dues by check-off in each month of the eligibility period, the payment of dues in December 2005 satisfied his dues obligation only through March 2005. This nine-month arrearage was consistent through the entire eligibility period.
Lambert's TITAN record shows that he paid dues via check-off authorization. However, no dues payment was posted to his record for the month of August 2004. Investigation of the employer's records showed that he commenced leave from his employer on July 28, 2004 and returned to work in September 2004. He received no compensation from his employer during this period of leave and did not pay cash dues to the union. Efforts to confirm these facts with Lambert were unsuccessful as he did not respond to our repeated telephone calls and correspondence.
Analysis
Article VI, Section 1 of the Rules provides that "to be eligible to run for any Convention delegate, alternate delegate or International Officer position, one 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; [and] (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."
Individuals who elect to pay "fair share" dues satisfy their obligation under the union security provision of the applicable collective bargaining agreement but, because they choose not to pay the full dues required by the IBT constitution, are not members in good standing. Straughter, 2001 EAD 103 (January 25, 2001), appealed and aff'd on other grounds, 01 EAM 23 (February 2, 2001). Accordingly, we GRANT the protest with respect to Kimberly Hart and Wayne Altshuler and find them INELIGIBLE to run for delegate or alternate delegate to the 2006 IBT convention.
A member on dues check-off retains his good standing even if his dues were remitted late or not at all, provided he gave a check-off authorization and had sufficient earnings in the month from which dues could have been deducted. IBT Constitution, Article X, Section 5(c); Dunn, E9 (October 31, 1995); Reynozo, 2005 ESD 18 (October 25, 2005); aff'd, 06 EAM 05 (January 4, 2006).
Local Union 97 uses a "collapsible" accounting system by which dues are applied to the last month for which dues have not been paid, regardless of the month in which dues are received. For example, the TITAN record for a member who incurs a dues arrearage in December 2001 but who subsequently pays dues timely each month will show the original dues arrearage of one month and a continuing arrearage in each month thereafter. Bibaud, E25 (January 22, 1996), aff'd, 96 EAM 62 (January 29, 1996).
The arrearage the TITAN record attributes to Thomas Hart exists solely because of the local union's accounting system and not because Hart failed to pay dues in any month in the eligibility period at issue in this case. The past arrearage will not serve to render a member ineligible where that member has actually paid dues in each of the 24 months we must examine. Accordingly, we DENY the protest with respect to Thomas Hart and find him ELIGIBLE to run for delegate or alternate delegate to the 2006 IBT convention.
Lambert did not pay dues for August 2004. Although he was on check-off status, he had no earnings in that month from which dues could have been deducted. Accordingly, we GRANT the protest with respect to Lambert and find him INELIGIBLE to run for delegate or alternate delegate to the 2006 IBT convention.
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
885 Third Avenue, Suite 1000
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, N.W., Suite 1400, Washington, D.C. 20007-5135, 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
2006 ESD 93
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
John Gerow, President
Teamsters Local 97
485 Chestnut Street
Union City, NJ 07083
Kimberly Hart
76 Watchung Ave
West Orange, NJ 07054
Wayne Altshuler
11 Rudderow Ave.
Maple Shade, NJ 08052-2909
Thomas Hart
117 Stratford Place
Bound Brook, NJ 08805
Antoine Lambert
62 Boston Street
Newark, NJ 07103
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Steven R. Newmark
1725 K Street, NW Suite 1400
Washington, DC 20005
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com