OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: ELIGIBILITY OF ) Protest Decision 2021 ESD 45
DAVE McCAFFREY ) Issued: January 20, 2021
-and- ) OES Case Nos. E-054-011721-FW
ELIGIBILITY OF ) & E-055-011821-FW
JUSTIN AGUIRRE, )
)
Local Union 952. )
____________________________________)
Dave McCaffrey and Justin Aguirre, members of Local Union 952, filed separate pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). Each protest challenged the eligibility verification letter the Office of Election Supervisor issued finding the protestor ineligible for nomination as delegate or alternate delegate.
Election Supervisor representative Jeffrey Ellison investigated these protests. They were consolidated for decision.
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.”
The nominations meeting for Local Union 952’s delegates and alternate delegates election is scheduled for January 20, 2021. Therefore, the 24-month period during which candidates must be in continuous good standing to be eligible for nomination ran from January 2019 through December 2020.
Both McCaffrey and Aguirre were elected shop stewards at their work location, UPS Anaheim, in March 2020. Under Local Union 952’s bylaws, the local union is responsible for dues of its shop stewards.[1] Under this provision, Local Union 952 should have commenced paying the dues of McCaffrey and Aguirre in April 2020. However, this was not done. Instead, UPS continued to deduct dues from their compensation, pursuant to check-off authorization they previously had signed and the monthly pre-bill the local union sent to UPS.
McCaffrey recognized the improper deduction within a month or two and told our investigator he contacted the local union’s TITAN operator, Patti Moser, several times to have her correct the issue. UPS continued to deduct Aguirre’s dues from his earnings for a longer period of time. The resolution of these accounting problems affects the eligibility determination for each member.
McCAFFREY – ELIGIBLE
McCaffrey’s dues were deducted timely from his earnings by UPS for April, May, and June, months for which the local union was responsible for the dues. During this time, McCaffrey accrued a three-month credit toward his dues obligation that the local union was obligated to reimburse to him. He commenced a workers’ compensation leave from work in late June 2020 and returned to work in early August. Off work for the full month of July, McCaffrey did not perform shop steward duties. Accordingly, per the bylaws provision, the local union was not responsible for his dues for that month. McCaffrey did not make a payment of dues to the local union during the month of July, relying on the three-month credit he had accrued because of the local union’s continued billing of UPS for his dues at a time when the local union should have been paying his dues itself.
On August 7, McCaffrey met with TITAN operator Moser at the local union hall. He explained the dues situation to her and requested a refund of the dues he paid that were the local union’s responsibility. He and Moser discussed the July dues, which McCaffrey agreed were his responsibility. McCaffrey suggested that part of the refund the local union owed him be credited to July dues, with the balance paid to him in a check. According to McCaffrey, Moser demurred, directing McCaffrey instead to pay July dues directly to the local union. McCaffrey did so, remitting a check that date for the full amount of the July dues. The dues payment was entered into the TITAN system on August 11.
Despite the August 7 meeting, the problem still was not corrected. UPS continued to deduct dues from McCaffrey’s compensation and remit them to the local union, and those dues were posted to McCaffrey’s record on September 4 and 11. Finally, on October 22, Moser made no fewer than 22 entries to McCaffrey’s dues history to correct the record.
Moser told our investigator that McCaffrey was not in good standing for July because his dues for that month were his responsibility and were not remitted until August. When our investigator noted that McCaffrey had a three-month credit for dues (the months of April, May, and June) which were not refunded to him until October, Moser conceded that by this analysis McCaffrey was in good standing for that month.[2]
The balance of McCaffrey’s dues record – those months preceding and following the months discussed above – show that he was in continuous good standing for the entire eligibility period. Accordingly, we find him ELIGIBLE for nomination for delegate or alternate delegate.
AGUIRRE – ELIGIBLE
Aguirre’s dues situation paralleled McCaffrey’s in that both were elected steward at the same worksite in the same month, and both continued to pay their dues by check-off from their own earnings for a period of time. Aguirre continued to pay his dues in this manner through September, a total of six months, before he learned that the local union was required to pay the dues on his behalf. He learned this fact in October, when he and McCaffrey visited the local union hall and met with Moser. At the time of the visit, Aguirre was on a workers’ compensation leave, which he commenced in mid-September and which would continue beyond October. According to Aguirre, he told Moser that he wanted to make sure everything was square with his dues because he wanted to maintain continuous good standing so he could run for delegate. According to Moser, Aguirre understood that the October dues were his responsibility because he was off work for that full month; nonetheless, Moser stated that Aguirre insisted on a full refund of the dues he had paid, leaving October dues unpaid. We credit Aguirre’s recounting of this meeting. We find that because of the six-month credit he had accumulated by paying his dues when they should have been paid by the local union, Aguirre’s dues were paid through October. The local union cannot take away his membership in good standing for that month by issuing him a refund for more than he was owed.
The balance of Aguirre’s dues record shows payment of November 2020 dues by UPS dues deduction credited to his history on December 4. Although Aguirre remained off work in November, he had compensation from UPS that month that was sufficient to fund his dues obligation for November. Inexplicably, the local union refunded this sum to him on December 22.[3] For the same reason that the refund the local union issued to Aguirre in October could not strip him of membership in good standing in that month, the refund issued him for November dues could not strip him of membership in good standing for November. When accepting reimbursement by the local union of dues that have been overpaid, the member is entitled to rely on the accounting of the local union that is to his benefit.
Finally, the local union paid Aguirre’s December 2020 dues under the stewards’ dues bylaw provision on December 21.
For the foregoing reasons, we find Aguirre maintained continuous good standing for the full eligibility period and therefore is ELIGIBLE for nomination for delegate or 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. Any party requesting a hearing must comply with the requirements of Article XIII, Section 2(i). All parties are reminded that, absent extraordinary circumstances, no party may rely in any such appeal upon evidence that was not presented to the Office of the Election Supervisor. Requests for a hearing shall be made in writing, shall specify the basis for the appeal, and shall be served upon:
Barbara Jones
Election Appeals Master
IBTappealsmaster@bracewell.com
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, all within the time prescribed above. Service may be accomplished by email, using the “reply all” function on the email by which the party received this decision. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Barbara Jones
2021 ESD 45
DISTRIBUTION LIST (BY EMAIL UNLESS NOTED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
braymond@teamster.org
Edward Gleason
egleason@gleasonlawdc.com
Patrick Szymanski
szymanskip@me.com
Will Bloom
wbloom@dsgchicago.com
Tom Geoghegan
tgeoghegan@dsgchicago.com
Rob Colone
rmcolone@hotmail.com
Barbara Harvey
blmharvey@sbcglobal.net
Kevin Moore
Mooregp2021@gmail.com
F.C. “Chris” Silvera
fitzverity@aol.com
Fred Zuckerman
fredzuckerman@aol.com
Ken Paff
Teamsters for a Democratic Union
ken@tdu.org
Teamsters Local Union 952
Team952@aol.com
Dave McCaffrey
Daveymc5@yahoo.com
Justin Aguirre
justinaguirre@ymail.com
Michael Miller
Miller.michael.j@verizon.net
Deborah Schaaf
dschaaf@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com
[1] Article VIII, Section 1(L) of the bylaws provides that the local union executive board shall “[p]ay on a non-discriminatory basis, the dues of Shop Stewards, which shall in no way affect the eligibility of such Shop Stewards to run for office or their entitlement to any other rights or benefits, and further provided that per capita taxes due to the International Union and subordinate bodies shall be paid by the Local Union. It shall be the responsibility of the Shop Steward to pay their dues in any calendar month in which they:
- Do not perform bargaining unit work at their job site; or
- Act in a capacity directed by Local 952; or
- Are no longer a Shop Steward.”
[2] We also note that McCaffrey, although on workers’ compensation, received holiday pay from UPS for the July 4 holiday. This compensation was sufficient to fund his dues obligation for July. Under established precedent, McCaffrey was entitled to rely on the check-off authorization he had previously signed to satisfy his dues obligation for that month. If no dues were deducted from that compensation – the case here – the local union’s remedy for the dues shortfall was to give notice to McCaffrey and permit him 30 days to satisfy the obligation. This was done on August 7, when Moser asked for the July dues and McCaffrey paid them. Accordingly, under the check-off rule, McCaffrey preserved his good standing for July with this payment. 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); Eligibility of Montes, 2011 ESD 114 (February 16, 2011).
[3] The TITAN report shows that the refund was entered in Aguirre’s dues history on December 9, even though the check was not written until December 22.