IN RE: ELIGIBILITY OF MIKE ELLIOTT, Protestor.
Protest Decision 2011 ESD 140
Issued: February 25, 2011
OES Case No. E-041-020911-SO
James Nelson, secretary-treasurer of BLET General Committee of Adjustment 150, 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 Mike Elliott is ineligible for nomination because he lacked the continuous good standing required for that position. The protest further alleged that Elliott was ineligible to second the nominations of delegate candidates Rob Holton and Shahraim Allen and alternate delegate candidates Mark Simeon and Rich Reeves.
Election Supervisor representative Maria Ho investigated this protest.
Findings of Fact and Analysis
Within the BLET, divisions are union structures equivalent to Teamsters local unions. However, unlike Teamsters local unions, each BLET division does not elect its own delegates and alternate delegates to the IBT convention. Instead, BLET elects convention delegates and alternate delegates at the General Committee of Adjustment (GCA) level of the organization. A GCA is comprised of divisions. Elliott is a member of Division 238 within GCA 150.
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." The nominations meeting for GCA 150's delegates and alternate delegates election was held February 8, 2011. Accordingly, the 24 month period during which candidates must be in continuous good standing in order to be eligible for nomination ran from February 2009 through January 2011.
The BLET maintains its own dues accounting records and is not on TITAN. To verify Elliott's eligibility during this period, we reviewed records submitted by GCA 150 for dues remittances received from him or remitted on his behalf. Within the BLET, dues are typically remitted by the employer directly to a member's GCA. However, the secretary-treasurers of individual divisions within each GCA are responsible for providing their GCA with monthly membership reports indicating which members should be removed, returned, or added to active status.
From February 2009 through December 2009, Elliott paid dues for each month through check-off authorization with his employer, Burlington Northern and Santa Fe Railway ("BNSF"). Although the BLET's dues accounting system does not allow for generating detailed histories of dues payment dates for GCA 150 members, payroll records show that Elliott had earnings in excess of his dues for all months in 2009. It is firmly established 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. 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).
In January 2010, no dues deduction was made for Elliott and he had a status of "A29H5." Elliott elected to take unpaid leave in the beginning of January but he returned to work on January 22. "A29H5" status in the BLET is analogous to withdrawal status in the IBT union in that it indicates the member is not working, usually due to illness or injury, and a member with "A29H5" status is excused from the obligation to pay dues during the months he/she remains on that status. Records show that GCA 150 was notified that Elliott was on "A29H5" status in the January membership report from Division 238's secretary-treasurer. Elliott told our investigator that he never requested to be placed on "A29H5" status, nor was he aware of the status change. Michael Hamilton, the secretary-treasurer of Division 238, confirmed that Elliott did not request "A29H5" status, and told our investigator that this status was likely automatically assigned to Elliott in the January membership report because he did not have earnings during the first two weeks of the month. Neither Division 238 nor GCA 150 notified Elliott of the status change or that dues for January were not deducted.
It is established that if a local union automatically issues a withdrawal card to a member who is out-of-work, such a withdrawal will not constitute an interruption in continuous good standing so long as the member has sufficient earnings from which dues could have been deducted in the months in question. Mattia, 2006 ESD 64 (February 1, 2006), aff'd, 06 EAM 10 (February 14, 2006); Daly, 2001 EAD 141 (February 6, 2001); Schock, 2000 EAD 13 (August 14, 2000); Zier, E19 (January 29, 1996), aff'd, 96 EAM 72 (February 1, 1996). We find that Elliott did not request the "A29H5" status and that he had sufficient earnings during January to meet his dues obligation. Accordingly, we find no interruption in Elliott's good standing during January 2010.[1]
From February 2010 through January 2011, Elliott's dues were paid for each month through check-off authorization with BNSF, and he had earnings in excess of his dues payments for each month.
Accordingly, we DENY the protest and find Elliott ELIGIBLE for nomination as delegate.
The protest further alleged that Elliott was ineligible to nominate or second candidates, and therefore Elliott's seconds of Holton, Allen, Simeon, and Reeves were invalid. 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). According to protestor Nelson, who is the secretary-treasurer of GCA 150, a check-off payment for Elliott's January 2011 dues was remitted by BNSF prior to the nomination meeting. Accordingly, we DENY the protest challenging the validity of the nominations of Holton, Allen, Simeon, and Reeves.
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 140
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
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
James Nelson, President
BLET GCA 150
801 Cherry Street, Ste. 1010, Unit 8
Ft. Worth, TX 76012
jnelson@grics.net
Michael Elliott
3302 North Shirley Street
Tacoma, WA 98407
mike.elliott.wslb@comcast.net
Rob Holton
7028 W. Carnie Road
Couer D'Alene, ID 83814
Shahraim Allen
517 S. 45th Street
Tacoma, WA 94818
shahraim@hotmail.com
Richard Reeves
712 15th Street NW
Puyallup, WA 98371
reevesrg@yahoo.com
M.O. Wilson, General Chairman
GCA150
801 Cherry Street, Ste. 1010, Unit 8
Ft. Worth, TX 76012
mowilson@blet-bnsfmrl.org
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
hall1000@cox.net
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