IN RE: ELIGIBILITY OF GARY HAM, ANGEL GARCES, and KIMBERLY SESSIONS, Local Union 854.
Protest Decision 2011 ESD 138
Issued: February 25, 2011
OES Case No. E-030-012011-NE
Daniel Gatto, president of Local Union 854, filed an eligibility 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 Gary Ham was ineligible for nomination as delegate to the IBT convention. In addition, the protest challenged the validity of the nominations of Angel Garces and Kimberly Sessions, as they were nominated by Ham, whom the protest claimed was ineligible to do so since his dues were not paid through the month prior to the nominations meeting.
Election Supervisor representative Kathryn A. Naylor investigated this protest.
Findings of Fact and Analysis
Article VI, Section 1(a) 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; (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; and (3) be eligible to hold office if elected."
Local Union 854 held its nominations meeting on January 19, 2011. Accordingly, 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.
2:59 PM 2/25/20111. Gary Ham - Ineligible
The protest claimed that Ham, a check-off member, had no earnings from which dues could be deducted in July or August 2009 or September 2010 and did not pay cash dues in those months.
Ham has worked at Jofaz Transportation since September 2008. Investigation showed that check-off remittances from Jofaz are usually late and sometimes are received by the local union two to three months after the payroll deduction from the member's wages has been taken. As a result, Ham's TITAN record shows the dates on which the local union actually received and posted the remittances in TITAN, which is of little guidance in identifying the months in which the employer deducted them. Further, under the local union's collapsible accounting system, dues are applied to the last month for which they have not been paid. In this regard, Ham's dues were 2 months in arrears during the 24-month eligibility period since the local union did not receive any remittances for Ham for August 2009 and September 2010. However, the TITAN also indicates that there was a 2-month arrearage from 2008 prior to the eligibility period that has carried forward to date since the ledger indicates that Ham's dues are 4 months in arrears.
Investigation included a review of the lists Jofaz sent the local union monthly, identifying the members for whom it was remitting dues. That review identified two months, August 2009 and September 2010, for which no dues were remitted for Ham. Given the well-settled rule that 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[1], we turned our inquiry to determining whether Ham had net earnings in August 2009 and September 2010 that were sufficient to fund his dues.
With respect August 2009, Jofaz's payroll records showed that Ham had no earnings in that month. Jofaz's payroll representative confirmed that Ham neither worked nor had any earnings from holiday or sick pay in August 2009.
With respect to September 2010, the payroll records showed that Ham had earnings for the week of September 27 through October 3, 2010. Ham does not work weekends and recalled that he worked three days, Wednesday through Friday respectively, during that week, i.e., September 29th and 30th, and October 1st. We find that even if Ham worked on October 1, he must have worked at least 2 days in September 2010, because his gross earnings for the pay period equaled 24 hours' pay.
Ham did not make any cash payments directly to Local Union 854 to cover his dues for August 2009 when he had no earnings to fund them through check-off.[2] As a result, there was an interruption in his continuous good standing during the 24-month eligibility period that renders him ineligible for nomination as a delegate.
Ham, through his counsel, maintains that he should be found eligible to run for nomination as a delegate since he requested verification of his eligibility prior to the nominations meeting, and our office identified months for which we had questions that are different than the months discussed in this decision. Ham contends he cannot be found ineligible at this point for months that were not brought to his attention during the verification process.[3] We disagree. The investigation of this protest produced claims and evidence that were unavailable to us during the verification process. That evidence proved dispositive of Ham's ineligibility. Cf., Eligibility of Rivers, 2011 ESD 64 (January 6, 2011) (protest challenged the determination of ineligibility made during the verification process; as a result of new evidence presented during the protest investigation, the member was found eligible for nomination as delegate). We also note that in advance of the IBT convention, all elected delegates and alternate delegates will have their dues payment histories examined to insure that they were eligible for nomination and are eligible to serve. In the event any elected delegate or alternate delegate is found at that time to have been ineligible for nomination or office, that person will not be issued convention credentials and will be replaced by the ranking alternate delegate. See Article III, Section 4 of the Rules.
Ham further argues, through counsel, that since Local Union 854 never notified Ham of any dues arrearages consistent with the requirements of Article X, Section 5(c) of the IBT Constitution, then such arrearages cannot be considered as a basis for finding him ineligible for nomination. Here too we disagree. Under Article X, Section 5(c) of the IBT Constitution, "where the Local Union notifies the member of his employer's failure to make check-off deductions, then payment must be made by the member within thirty (30) days of said notice in order to retain good standing status." If the local union does not send such a notice, then the member is entitled to rely on the check-off rule for eligibility under Article X, Section 5(c) of the IBT constitution that is accorded to any member on check-off "whose employer fails to make a proper deduction during any month in which the member has earnings," provided the member had earnings on any one or more days during the month sufficient to fund the total monthly dues obligation. In this case, Ham was not entitled to rely on the check-off eligibility rule because he had no any earnings whatsoever from Jofaz in August 2009.
Accordingly, we find GRANT the protest and find Ham INELIGIBLE for nomination as delegate to the IBT convention.
2. Angel Garces and Kimberly Sessions - Ineligible
The protest further alleged that the nominations for Garces and Sessions were invalid because both were nominated by Ham, who was ineligible to do so. To be eligible to nominate or second a nomination, a member must be "in good standing, with his/her dues paid through the month prior to the nominations meeting." Article II, Section 5(h). As such, in order to be eligible to nominate and second other candidates running for delegate or alternate delegate, Ham's dues had to be paid through December 2010, the month prior to the nominations meeting. As discussed above, Ham's dues for August 2009 were not paid by check-off because he had no earnings that month nor did he pay cash dues; as a result, his dues were not paid through December 2010 at the time of the nominations meeting.
Accordingly, based on the foregoing, we find that Ham was INELIGIBLE to nominate other delegate or alternate delegate candidates. As a result, the nominations of Garces and Sessions were invalid. Since Ham, Garces and Sessions were the only opposition candidates nominated at the nominations meeting, the other nominated candidates are unopposed and are hereby deemed elected.
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 138
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
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
3541 N. Summit Avenue
Shorewood, WI 53211
scottsoldon@gmail.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
Gary Ham
180 Parkhill Avenue, #2H
Staten Island, NY 10304
smiley0007@aol.com
Angel Garces
880 St. Nicholas Avenue, Apt. 35
New York, NY 10032
garcesgeronimo2@hotmail.com
Kimberly Sessions
199 Tapscott Street
Brooklyn, NY 11212
myapplejones@gmail.com
Daniel Gatto, President
Teamsters Local Union 854
764 St. Luke's Place
Baldwin, NY 11510
dglocal854@optonline.net
Walter Kane
Cary Kane LLP
1350 Broadway, Suite 1400
New York, NY 10018
wkane@carykane.com
David F. Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
Maria S. Ho
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
mho@ibtvote.org
Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org
Jeffrey J. Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com