June 3, 1996
VIA UPS OVERNIGHT
William R. Groweg
June 3, 1996
Page 1
William R. Groweg
2321 Cobble Creek
Conroe, TX 77384
Francis Pradier
14135 Lorne Street
Houston, TX 77049
Dan L. Morris
234 Bluffview
Willis, TX 77387
Nick R. Ramirez
407 S. Johnson
Pasadena, TX 77506
James Buck, Trustee
Teamsters Local Union 988
3100 Katy Freeway
Houston, TX 77007
Nathaniel Charny
Cohen, Weiss & Simon
330 W. 42nd Street
New York, NY 10036
James L. Hicks, Jr.
Hicks & Associates
1420 W. Mockingbird Lane
Suite 760
Dallas, TX 75247
William R. Groweg
June 3, 1996
Page 1
Re: Election Office Case No. Post-23-LU988-SOU
CORRECTED DECISION
Gentlemen:
A post-election protest was filed pursuant to Article XIV, Section 3 of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) by
William R. Groweg
June 3, 1996
Page 1
William Groweg, a member of Local Union 988. The protester alleges that three ballots counted during the resolution of challenged ballots required by the Election Officer in Groweg, Post-11-LU988-SOU (April 30, 1996), were from members who were not eligible to vote.[1] The protester contends that the three members who submitted these ballots were not in good standing when the ballots were mailed but paid their delinquent dues prior to the ballot count. According to the protester, members who are not eligible to vote during the month prior to the month in which the ballots are counted cannot be made eligible by paying their arrears the next month.
On May 28, 1996, the Election Officer issued a decision in this matter in which the protest was declared untimely and denied as a result. That decision was issued in error and is void. It is superseded by this corrected decision.
As an initial matter, the Election Officer is disturbed by Mr. Groweg’s failure to raise the issue protested here during the hearing before the Election Appeals Master on May 8, 1996. At that time, the Election Officer invited all parties involved in the Local Union 988 ballot dispute to present arguments concerning any remaining issues pertinent to the resolution of the local union’s delegate election. In his protest, Mr. Groweg admits that he intended to raise the subject of this protest at the hearing but failed to do so. He contends that he may have been denied the opportunity to raise this issue, but the record indicates that he was represented by counsel at the hearing. His attorney, James L. Hicks, Jr., had ample opportunity to raise issues of concern at the hearing but failed to mention the dispute concerning the three ballots protested here either during his argument or in his pre-hearing brief.
While the Election Officer believes this matter should have been raised during the
May 8, 1996 hearing in order that all issues in dispute regarding the election could have been resolved at one time, she also believes it is important that members understand the Rules that apply to members’ eligibility to vote. For this reason, the merits of Mr. Groweg’s protest are addressed below.
The protester asserts that three ballots counted by Regional Coordinator Dolores Hall during the resolution of challenged ballots ordered by the Election Officer were cast by members who were not eligible to vote. Mr. Groweg contends that the improper inclusion of these three ballots could potentially alter the results of the election for the three alternate delegate positions. The results of Local Union 988’s alternate delegate election following the resolution of the challenged ballots are as follows:
William R. Groweg
June 3, 1996
Page 1
Name Slate/Independent Votes
Kathy Lane Teamsters 4 Teamsters 511
Sam Levy Teamsters 4 Teamsters 505
Billy Stewart Teamsters 4 Teamsters 498
Nick Ramirez Delegates for Hoffa 385
Francis Pradier Delegates for Hoffa 377
Bill Groweg Delegates for Hoffa 363
Henry Realyvasquez Members Leadership 221
Tom Mitchell Members Leadership 212
Clint Anderson Members Leadership 209
The margin of votes between the successful alternate delegate candidate with the least votes, Billy Stewart, and the candidate with the next most votes, Nick Ramirez, is currently 113 votes. In her decision in Groweg, supra, the Election Officer determined that 112 members of Local Union 988 had been denied the right to vote, in violation of the Rules. In that case, the Election Appeals Master did not order a re-run of the alternate delegate election because, even after the resolution of the challenged ballots, the margin of victory still exceeded the number of disenfranchised voters.
Now, however, Mr. Groweg reasons that, with the inclusion of three ballots cast by members not eligible to vote, the potential margin for victory has fallen below the number of disenfranchised members found in Groweg. This reasoning relies upon the assumption that at least one of the protested ballots included a vote for Mr. Stewart and that the vast majority (or all, depending on how many of the ballots protested here included votes for Mr. Stewart) of the voters found disenfranchised in Groweg would have voted for Mr. Ramirez.
The Election Officer views the right for members to cast ballots in the delegate and International officer elections as primary to the goal of the Consent Decree that “the IBT be maintained democratically for the sole benefit of its members . . .” In fulfilling this goal, the Election Officer seeks to extend the franchise to the greatest possible number of IBT members within the confines of the Rules and the IBT Constitution.
The Rules, at Article VI, Section 1, state, as a general rule, that, “To be eligible to vote in an election for delegate, alternate delegate or International Officer, a member must have his/her dues paid up through the month prior to the month in which the election is held.” There are however, several exceptions to the general rule, both by operation of the Rules and the IBT Constitution. Such exceptions include delayed checkoff payments by employers (See Article VI, Section 1(b)); newly initiated members who have not fully paid their initiation fee, but have been employed more than six months (See Article VI, Section 1(c)); and the ability to restore good standing for the purpose of voting set out in Article X, Section 5(c) of the IBT Constitution.
William R. Groweg
June 3, 1996
Page 1
Furthermore, the determination of whether a member has paid dues up through the month prior to the month in which the election is held--the “target month”--is not made at the conclusion of the target month. Rather, this is a determination that is made based upon the facts as they exist as of the count date. The ability to restore good standing for the target month after the target month has passed and become eligible to vote is reflected in the creation of an arrearage date, a requirement of all local union plans pursuant to Article II, Section 4(c) of the Rules. This date, set a day or two prior to the count date, permits members (generally cash-dues payers) to pay any dues delinquency by this date in order to be eligible. The ability to restore good standing for voting purposes is also set forth in Article X, Section 5(c) of the IBT Constitution, which states,
Any member failing to pay his dues at such time [before the last business day of the month] shall not be in good standing for such month but may restore such good standing for such month for the purpose of attending meetings, nominating, voting, participating in the affairs of the local union by the payment of his delinquent dues prior to such meeting.
Thus, eligibility to vote is determined by whether a member meets the eligibility criteria as of the date of the election count rather than being a measure of what a member owed at the conclusion of the target month.
We turn, then, to the specific situation of the eligibility of the three members raised in Mr. Groweg’s protest.
1. Member on withdrawal during the target month
One of the members cited by the protester, Loretta Andrews, was on withdrawal during the target month. The purpose of withdrawal under the IBT Constitution is to excuse the member from the payment of dues for those months “when a member becomes unemployed in the jurisdiction of the Local Union.” See IBT Constitution, Article XVIII, Sections 6 and 7. Hence, a member on withdrawal during the target month would not owe any dues for that month. Thus, if that member returned to active status prior to the election (during the month of the count) and paid dues for that month or is on the employer’s most recent remittance, the Election Officer would find that member eligible because he or she is in good standing at the time of the count.
William R. Groweg
June 3, 1996
Page 1
The TITAN record indicates that Ms. Andrews went on withdrawal on January 30, 1996. At that time, her dues were paid through December 1995. Ms. Andrews deposited her withdrawal card on March 14, 1996. On the same day, a checkoff dues payment for one month’s dues was posted to her account on the system. When the deposit of the withdrawal card and the checkoff payment were posted, the local union TITAN operator incorrectly recorded Ms. Andrews as paid through April 1996 (rather than March 1996, when she made the payment). The protester argues that Ms. Andrews was never in good standing with her dues paid current in either February 1996 or March 1996. He contends that the application of Ms. Andrews checkoff dues payment to her April obligation was correct.
The actions of the TITAN operator in this instance, however, were not in accord with the IBT Constitution. Article XVIII, Section 6(i) states, in relevant part, “. . . The Local Union shall collect a month’s dues for the month in which the withdrawal card is deposited.” As a result, the checkoff dues payment posted after Ms. Andrews deposited her withdrawal card should have been applied to her March dues obligation. The TITAN operator erred in setting Ms. Andrews’ paid-through status to April 1996. In any case, however, she had the requisite paid-through and good standing to be eligible to vote.
Ms. Andrews satisfies the requirements of Article VI, Section 1(a). At the time of the ballot count, she was a member in good standing. The only other requirement of this section of the Rules is that the member have his or her dues paid through the month prior to the month in which the ballots were counted. Because she was on withdrawal, Ms. Andrews did not owe any dues for the month prior to the month of the ballot count. The fact that
Ms. Andrews was on withdrawal prior to the election does not destroy her eligibility so long as she was in good standing at the time of the election, as required by the Rules.
2. Members on suspension during the target month
The two other members protested, Ed Mchalek and Melvin Jacobs, were on suspension during the target month. Article X, Section 5(c) of the IBT Constitution, reads,
Any member who shall be three (3) months in arrears in the payment of dues, fines, assessments, or other charges, shall automatically stand suspended at the end of the third (3rd) month, and shall not be entitled to any rights or privileges of member-ship . . . Any member who has been automatically suspended for failure to pay dues and other charges shall be under a continuing obligation to pay dues during the period of his suspension. Payment of dues shall not restore good standing statues if fines or other charges dues are not paid. In addition to requiring the payment of delinquent dues, the Local Union may adopt a Bylaw provision requiring the payment of a reinitiation fee for entitlement to the rights and privileges of membership. The Local Union Executive Board shall have the power to waive on a non-discriminatory basis the payment of delinquent dues and/or reinitiation fees . . .
Thus, a member who returns from suspension normally would not be entitled to be eligible to vote unless he or she pays all delinquent dues and other charges for the entire period of the suspension.
William R. Groweg
June 3, 1996
Page 1
The TITAN record indicates that Mr. Mchalek was suspended on October 26, 1996. He returned from suspension on March 12, 1996 when he paid a $100 re-initiation fee and one month’s dues. The investigation revealed that, this practice, to treat suspended members as having restored their good-standing status through the payment of their re-initiation fee and dues for the month in which they returned from suspension, without the payment of the delinquent amounts owed, has been utilized by the local union TITAN operators since at least the late 1980s. This practice effectively waived members’ arrearages and accepted them back into good standing based upon the payment of the re-initiation fee and one month’s dues. Thus, Mr. Mchalek restored his good-standing status prior to the count date and was eligible to vote.
Similarly, Mr. Jacobs’ TITAN record reveals he was suspended on November 14, 1995. The record indicates that his dues payments were delinquent for one month.
Mr. Jacobs returned from suspension on March 12, 1996, at which time he paid a $100 re-initiation fee and one month’s dues. The TITAN operator applied these dues to Mr. Jacobs’ April 1996 dues obligation. Again, as with Ms. Andrews, the local union TITAN operator erred in applying Mr. Jacobs’ dues payment to the month after he returned from suspension. Through the practice of the local union, Mr. Jacobs restored his good standing when he returned from suspension in March 1996 and paid his dues obligation for that month as the local union’s actions constituted a waiver of his prior delinquency. He was, therefore, eligible to vote.
For the foregoing reasons, the protest is DENIED.
Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one day of receipt of this letter. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Officer in any such appeal. Requests for a hearing shall be made in writing and shall be served on:
Kenneth Conboy, Esq.
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022
Fax (212) 751-4864
William R. Groweg
June 3, 1996
Page 1
Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 N. Capitol Street, Suite 855, Washington, DC 20001, Facsimile
(202) 624-3525. A copy of the protest must accompany the request for a hearing.
Sincerely,
Barbara Zack Quindel
Election Officer
cc: Kenneth Conboy, Election Appeals Master
Dolores C. Hall, Regional Coordinator
[1]In Groweg, the Election Officer determined that a number of members sufficient to affect the outcome of the delegate election had been impermissibly excluded from the election process. She ordered that the challenged ballots remaining in the election be resolved and, if the number of excluded members still exceeded the number of votes between the successful delegate candidate with the least votes and the nearest candidate, the election would be re-run.