IN RE: ELIGIBILITY OF TODD TATUM, Local Union 773.
Protest Decision 2011 ESD 149
Issued: March 7, 2011
OES Case No: E-042-022211-ME
Charles Shafer, secretary-treasurer of Local Union 773, 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 alternate delegate candidate Todd Tatum is ineligible for nomination because he lacks the continuous good standing required for the position.
Election Supervisor representative Maria Ho investigated this protest.
Findings of Fact and Analysis
Under Article VI, Section 1(a) of the Rules, "[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 this local union's delegates and alternate delegates election was held February 20, 2011. Therefore, 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. To verify Tatum's eligibility during this period, we reviewed TITAN records for dues remittances made on his behalf by UPS, his employer, and additional information supplied by him and the local union.
Tatum's TITAN record shows that his dues were timely paid by check-off from February 2009 through January 2010, with the exception of two months. In those two months, Tatum had earnings in excess of his dues, and his dues for each of those months were remitted in the next month. The IBT constitution and our precedents make clear that a member on dues check-off retains his good standing even if his dues for a given month 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 that 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 serves to protect Tatum's good standing through the first 12 months of the eligibility period.
Beginning in February 2010, no dues were deducted from Tatum's wages for four consecutive months, even though he had earnings in each of those months to fund the monthly dues obligation. Investigation showed that Tatum took unpaid leave approved under the Family Medical Leave Act ("FMLA") on February 8, 2010; he returned from that leave on March 23. Tatum was paid vacation pay in the first week of February and had earnings from work in the last week of March sufficient to fund his dues for each month, yet no dues were deducted. Further, his earnings in April and May far exceeded his dues obligations for those months, but no dues were deducted.
Investigation also showed that Local Union 773 sent Tatum a notice on March 29, 2010, that no dues deduction was made from his February pay. This notice was sent pursuant to Article X, Section 5(c) of the IBT constitution, which provides that "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." Tatum did not respond to this notice with a cash payment for his February dues. He told our investigator that when UPS fails to remit a check-off payment for a member on leave or vacation, it automatically makes catch-up deductions (i.e., remittances for two months' dues) in each subsequent month until the member's dues are paid through the current month. Pay records for Tatum and other UPS employees confirmed this practice. Tatum assumed that such a catch-up deduction would be made by UPS after he returned to work in late March 2010 to satisfy his February dues obligation.
It was not, because of an intervening action the local union took. Investigation showed that on March 22, Local Union 773 placed Tatum on TITAN status code "18" after UPS notified it that Tatum was on FMLA leave. That TITAN code means merely that the member is no longer on check-off; the local union does not bill the employer for dues for any member on code 18, even if the member is working. Code 18 is not authorized by the IBT constitution or the TITAN manual for members such as Tatum who take FMLA leave. More importantly, Local Union 773 never notified Tatum that it had placed him on code 18 or effectively removed him from check-off.
Tatum told our investigator he received a second notice from the local union, dated April 23, notifying him that his dues were now in arrears for February and March 2010. At this, he contacted the local union on May 18 to inquire. When he was told that he had been removed from check-off, he responded by requesting resumption of check-off, and this was done. Local Union 773 acknowledged to our investigator that Tatum made the May 18 call and that he was removed from code 18 and placed back on check-off. On June 10, UPS made the first catch-up deduction to cover Tatum's February and March dues, and subsequent catch-up deductions were taken until Tatum's dues were paid through the current month.
On these facts, we find that Tatum still enjoyed the benefit of his check-off status. He had sufficient earnings to fund his dues in each of the months when no dues were deducted. When the local union notified him that it had not received payment of his February dues, he was not obliged to make cash payment to erase the arrearage but instead was entitled to rely on the catch-up deduction practice that his employer had previously used for him and his fellow employees to bring dues payments current. The local union's action of removing him from check-off without cause or notice to him is the only thing that interfered with the catch-up deduction process. This action by the local union will not serve to cause an interruption in continuous good standing.
Accordingly, as Tatum had earnings in excess of his dues in every month during the balance of the eligibility period to fund his monthly dues payments, we DENY the protest and find Tatum ELIGIBLE for nomination as alternate delegate to the 2011 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, 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 149
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
Charles Shafer
1105 Dylan Drive
Allentown, PA 18104
cshafer@teamster773.org
Todd Tatum
1222 North 26thStreet
Allentown, PA 18104
bonestatum@aol.com
Stephen F. Banus, President
IBT Local Union 773
1345 Hamilton Street
Allentown, PA 18102
sbanus@teamster773.org
Denise Ventura
949 Old Hickory Road
Pittsburgh, PA 15243
dmventura@verizon.net
Maria S. 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