IN RE: ELIGIBILITY OF EDWIN TAYLOR and JAMES PRICE, Local Union 107.
Protest Decision 2011 ESD 95
Issued: January 31, 2011
OES Case No. E-024-011811-ME
William Hamilton and Shawn Dougherty, respectively the president and secretary-treasurer of Local Union 107, 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 delegate candidate Edwin Taylor and alternate delegate candidate James Price are ineligible for those positions. Local union member Mike Mitchell filed a protest the same date challenging the eligibility of Taylor. These protests were consolidated as one under the same case number.
Election Supervisor representative Maria Ho investigated this protest.
Findings of Fact and Analysis
1. Ed Taylor - Eligible
Protestors Hamilton and Dougherty asserted that Taylor does not meet the 24-month good standing requirement nor has he "worked in the craft in the jurisdiction of the Local."
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 Taylor's eligibility during this period, we reviewed TITAN records for dues remittances received from him or remitted on his behalf by USF Holland, his employer.
Our analysis starts with the history of Taylor's dues payments. His dues from January 2009 through March 2009 were paid timely by check-off authorization.
Taylor sustained an injury at USF Holland in March 2009 that forced him out of work. On April 3, 2009, the Philadelphia terminal where Taylor worked ceased operations permanently. Taylor paid cash dues for April and May 2009; however, those dues were posted late to TITAN on June 23, 2009. Accordingly, we scrutinize this payment.
Taylor did not work at all in April because of his injury, but he received vacation and sick pay sufficient to cover his dues. A member on dues check-off retains his good standing even if his dues were remitted late or not at all by the employer, provided he had signed a check-off authorization and had sufficient earnings or paid leave in the month from which dues could have been deducted. IBT Constitution, Article X, Section 5(c); Eligibility of John Gerow, et al., 2006 ESD 121 (March 2, 2006); Eligibility of Thiel, 2010 ESD 16 (July 26, 2010), appeal withdrawn, 10 EAM 4 (August 6, 2010). This rule operates to protect Taylor's continuous good standing for April 2009, when his employer did not remit his dues at all.
In May 2009, although USF Holland's Philadelphia terminal was closed, Taylor received payments directly from USF Holland under the Worker Adjustment and Retraining Notification (WARN) Act. WARN requires employers to provide notice 60 days in advance of covered plant closings and layoffs. The statutory penalty for insufficient or no notice is to pay affected employees their regular pay for up to 60 days following cessation of operations. Records from the Pennsylvania Department of Labor show that USF Holland posted a WARN notice in March 2009, and ceased operations at its Philadelphia terminal in April 2009. However, after the closing, employees received weekly payments from USF Holland at their regular rate until May 2009. Local Union 107 did not give its members employed by USF Holland written notice that dues would not be deducted from WARN payments. As WARN payments are paid directly to the worker by the employer and therefore treated as earnings, Taylor had sufficient earnings to cover his dues in May, and his employer's failure to remit dues for May did not interrupt his continuous good standing.
From June 2009 through December 2010, Taylor made timely cash dues payments.
We conclude that Taylor maintained his continuous good standing through check-off or cash payment of dues for the entire 24-month eligibility period.
Protestors Hamilton and Dougherty also alleged that Taylor was not employed at the craft for the 24-month eligibility period. This allegation implicates the second eligibility criterion set forth above. Examination of this issue shows that Taylor last worked for USF Holland in March 2009, when he sustained a work-related injury. He received workers' compensation benefits, and was given a release from worker's compensation in August 2010, 16 months after his injury and 15 months after his terminal closed. Upon his release from worker's compensation, Taylor contacted the local union, looking for employment.
On these facts, we conclude that Taylor meets the "employment at the craft" eligibility criterion. First, a local union cannot permissibly place a member on withdrawal status if the member 1) is receiving worker's compensation benefits and 2) retains re-employment rights with an employer party to a collective bargaining agreement.[1] Taylor met both of these requirements: he drew worker's compensation benefits, and he retained re-employment rights with USF Holland, albeit not at the Philadelphia terminal that had ceased operations.[2]
Second, after his release from worker's compensation, records show that Taylor contacted Shawn Dougherty, the local union's secretary-treasurer, in September 2010, looking for work. Taylor was employed for one day in September 2010 at Amerimax, a union employer, and records show he has been seeking work since then. He has not worked outside Local Union 107's jurisdiction. Under Article VI, Section 2(b) of the Rules, "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."
Accordingly, we DENY the protest and find Taylor ELIGIBLE for nomination as delegate.
2. James Price - Eligible
Protestors Hamilton and Dougherty asserted that Price does not meet the 24-month good standing requirement.
To verify Price's eligibility, we reviewed TITAN records for dues remittances received from him. Although Price has been continuously employed at YRC from January 2009 through December 2010 except for two periods during 2010 when he was on disability, he paid dues in cash for the entire 24 months. He made timely cash payments from January 2009 through November 2009. However, his cash dues payment for December 2009 was posted to TITAN on January 4, 2010; if the date of posting was the date payment was made, payment would be deemed untimely, rendering Price ineligible for nomination as alternate delegate. Accordingly, we scrutinize this payment.
Price's check for his December dues was dated December 18, 2009 and mailed to the local union. However, the local union was closed from December 31, 2009 through January 3, 2010; any payments received by mail during that period were posted on January 4, 2010, when staff returned to work. There is no record of the date of mailing. Under these circumstances, we credit the check as timely received. We do so because Price's check was mailed and the local union was closed at the end of December, producing uncertainty as to when Price sent the payment and the date of receipt.
From January 2010 until December 2010, Price made timely cash dues payments.
Accordingly, we DENY the protest and find Price 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 95
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
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Teamsters for a Democratic Union
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Scott D. Soldon
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Teamsters Local Union 89
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Brent Corbello, Secretary-Treasurer
Teamsters Local Union 891
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