IN RE: ELIGIBILITY OF JOSEPH GARNER, Local Union 391.
Protest Decision 2011 ESD 78
Issued: January 24, 2011
OES Case No. E-014-011011-AT
Vernon Gammon, member and secretary-treasurer of Local Union 391, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest alleged that alternate delegate candidate Joseph Garner is ineligible for that position.
Election Supervisor representative Maria Ho investigated this protest.
Findings of Fact and Analysis
Protestor Gammons asserted that Garner "has not worked within the craft for the past 24 months." We therefore examine Garner's eligibility.
Under Article VI, Section 1(a) of the Rules for the 2011 IBT Election, "[t]o 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; (2) Be employed at the craft within the jurisdiction of the Local Union for a period of twenty-four (24) consecutive months prior the month of nomination; and (3) Be eligible to hold office if elected."
>Because the nominations meeting for the local union's delegates and alternate delegates election was held in January 2011, the 24 month period during which candidates must be in continuous good standing in order to be eligible for nomination ran from January 2009 through December 2010. To verify Garner's eligibility during this period, we reviewed TITAN records for dues remittances received from him or remitted on his behalf by UPS, his employer.
Garner sustained an injury at UPS in January 2009 that forced him out of work. He has not returned. Garner also serves as an elected trustee of the local union, a position he has held at all times during the eligibility period.
Our analysis starts with the history of Garner's dues payments. His dues in the month of injury were paid by check-off authorization. He made timely cash dues payments in February and March 2009. His cash dues payment for April was posted to TITAN on May 8, 2009; if the date of posting was the date payment was made, payment would be deemed untimely, rendering Garner ineligible for nomination as alternate delegate. Accordingly, we scrutinize this payment.
Garner's check was dated April 17, 2009. Local union staff relocated to a new building that month. During the transition to the new hall, staff was temporarily without access to TITAN and could not enter cash dues payments into the system. Instead, staff entered payments in a cash ledger and placed the payment in the safe. When access to TITAN was restored, the payments noted in the cash ledger were entered into TITAN. Local union staff told our investigator that they could find no record in the cash ledger of the date they received Garner's April 2009 dues payment. However, because of the transition to the new building that month, they could not be certain that Garner's check was received May 8 (the date it was posted to TITAN), April 17 (the date shown on the face of the check), or some other date. Under these circumstances, we credit the date shown on the check as the date of payment, making it timely received. We do so because local union procedures for posting cash payments were disrupted during that month, producing uncertainty as to date of receipt.
In May 2009, Garner had UPS earnings from holiday pay. These earnings were sufficient to fund his dues, and UPS indeed deducted and remitted them. They were posted to Garner's TITAN record on June 5. As the dues were deducted from May earnings, the late remittance will not serve to interrupt Garner's continuous good standing.
Review of Garner's TITAN record for the balance of the eligibility period shows timely payment of dues. Were dues payment history the only matter in dispute, we would find Garner eligible.
However, protestor Gammons alleged that Garner has not been employed at the craft for the 24 month eligibility period. Examination of this issue shows that Garner last worked for UPS in January 2009, when he sustained a work-related injury. He has received workers' compensation benefits.
Garner also received payment from the local union for his service as elected local union trustee. He was last elected to that position in 2008; his present term will end following the local union officers election that take place in Fall 2011.
Garner meets the "employment at the craft" eligibility criterion for two reasons. First, because Garner is drawing worker's compensation benefits as the result of his work-related injury and retains reemployment rights with UPS should he recover sufficiently to return to work, the local union may not issue him a withdrawal card, and his continuous employment at the craft is not interrupted.[1]
Second, as an elected trustee, Garner's "employment at the craft" status also is assessed by reference to Article VI, Section 2(f) of the Rules, viz.
All officers and full-time employees of the International Union and of any affiliate … shall be considered as meeting the requirement of working at the craft within the jurisdiction for the purpose of retaining active membership and of being ruled eligible for election to office. However, officers who are not full-time employees of an affiliate and who are not otherwise employed at the craft shall not be considered to satisfy the working at the craft requirement by virtue of being an officer for longer than the term of office being served at the time fulltime employment at the craft has been terminated.
Applying this provision, were Garner to lose his "working at the craft" status by becoming unemployed for more than 6 months with UPS - which we find he has not - he would nonetheless retain his "working at the craft" status under this Rules provision for the duration of his present term of office.
Accordingly, we DENY the protest and find Garner ELIGIBLE for nomination as alternate delegate.
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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 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
2011 ESD 78
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington,D.C. 20001
braymond@teamster.org
David J. Hoffa
Hoffa Hall 2011
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org
Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net
Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com
Scott D. Soldon
Previant Goldberg
1555 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com
Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com
Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com
Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org
Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com
Vernon Gammon, Secretary-Treasurer
Teamsters Local Union 391
3910 Teamsters Place
Colfax, NC 27235
vgammon@teamsterslocal391.org
Joseph Garner
613 Mimosa Street
Durham, NC 27703
thundercloud@nc.rr.com
Claude Gray, President
Teamsters Local Union 391
P.O. Box 35405
Greensboro, NC 27425
cgray65663@aol.com
J. Griffin Morgan
Elliot Pishko Morgan
426 Old Salem Road
Winston-Salem, NC 27101
jgmorgan@epmlaw.com
Maria Ho
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W., Suite 421 L
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com
[1] Under Article XVIII, Section 6(a) of the IBT constitution, a local union must issue a withdrawal card to an unemployed member who remains unemployed for more than 6 months. However, the provision states further that a member "is not considered to be unemployed if the member is on … worker's compensation and retains reemployment rights with an employer party to a collective bargaining agreement."