Eligibility of Malungahu, 2020 ESD 24
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: ELIGIBILITY OF TAYLOR ) Protest Decision 2020 ESD 24
MALUNGAHU, ) Issued: October 5, 2020
) OES Case No. E-031-092520-GP
Local Union 222. )
____________________________________)
Taylor Malungahu, member of Local Union 222, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2020-2021 IBT International Union Delegate and Officer Election (“Rules”). The protest challenged the determination made by the Office of the Election Supervisor (OES) that Malungahu is ineligible for nomination in Local Union 222’s delegates and alternate delegates election because he has not maintained 24 months of continuous good standing as required by the IBT constitution and the Rules.
Election Supervisor representative Jim Devine 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. The continuous good standing requirement is adopted from Article II, Section 4 of the IBT constitution, except as modified by the provisions of Article VI, Section 1(b) of the Rules.
Local Union 222 will hold its nominations meetings on January 11, 2021. Accordingly, the 24-month period during which candidates must be in continuous good standing in order to be eligible for nomination runs from January 2019 through December 2020.
Article VI, Section 4(a) of the Rules recommends that “each candidate for any Convention delegate … position request that the Election Supervisor verify his/her eligibility.” Protestor Malungahu made his request on September 21, 2020.
Review of Malungahu’s TITAN dues-payment record shows that he was a check-off dues payer while employed by YRCW. His employment there commenced in 1999 and continued through May 2020, when the employment terminated. For the first 17 months of the eligibility period at issue here, Malungahu maintained continuous good standing, with his dues timely paid monthly by check-off deduction during that period. Following his termination of employment with YRCW, no dues were paid to the local union in the months of June, July, and August 2020. In September 2020, Malungahu went to the local union and learned that no dues had been paid since YRCW’s last remittance in May 2020. He paid the delinquent dues to regain membership in good standing. However, under Article X, Section 5(c) of the IBT constitution, “[p]ayment of such dues after their due date shall not restore good standing status for such month or months in computing the continuous good standing status required by Article II, Section 4 of this Constitution as a condition of eligibility for office.” Based on this interruption in continuous good standing, OES issued a letter to Malungahu on September 23, 2020, finding him ineligible for nomination.
This protest followed. In support of the protest, Malungahu established that, while employed by YRCW, he commenced employment with UPS under the jurisdiction of Local Union 222. He was working for both employers during a period of many months. Malungahu initially commenced work with UPS as a part-time employee and went full-time in May 2020 when he terminated with YRCW. Investigation showed that Local Union 222 business agent Jeff Kendall knew Malungahu was employed by both employers simultaneously when Malungahu commenced with UPS. Kendall was also aware of the termination in May 2020, as he was processing a grievance on Malungahu’s behalf during that month. Investigation further showed that YRCW notified the local union dues department by June 12, 2020, at the latest, that Malungahu had terminated there as explanation for not remitting June dues for him. Finally, investigation showed that UPS notified the local union as early as May 2020 that Malungahu was a full-time employee. However, UPS did not remit dues for Malungahu in May, June, July, August, or September 2020.
Malungahu told our investigator that, when he stopped working for YRCW and commenced working full-time for UPS, he believed the local union would begin deducting dues from his UPS compensation. Although he had electronic access to his UPS checkstubs, Malungahu did not detect the absence of dues deductions until September, at which point he went to the local union to investigate the situation and pay the delinquent dues. In addition to his contact with the local union that month, Malungahu also had a text message exchange with business agent Kendall to ask why he had not been sent a delinquency notice for the unpaid dues. Kendall replied that “[w]e send delinquency notices out for people who self pay dues that have failed to pay. When an employee changes employers it is the member’s responsibility to fill out a new application. I discussed this with you when you started at UPS.”
Kendall told our investigator that a member who switches companies must submit a new application for membership form and a new check-off authorization in order to have dues deducted from his earnings. Kendall explained that these requirements are because Utah is a right-to-work state. Kendall further told our investigator that “I think I told Malungahu after he was terminated from YRC that he needed to re-sign with the union since he was working for a new company.” Kendall stated that all “new hires” need to sign up with the union in order to become members, and that Malungahu would have been considered a new hire. Kendall stated further that a union steward typically attends UPS new employee orientation and would normally give a presentation about joining the union. Kendall stated he did not know if a steward spoke at the new employee orientation Malungahu attended, but that it is the union member’s responsibility to make sure his dues are paid.
Malungahu refuted Kendall’s statement about UPS full-time employee orientation. He attended the orientation with Ryan Earl, another YRCW employee who was transitioning to full-time UPS employment. Both were check-off members with YRCW. Both told our investigator that they assumed the check-off authorization would carry over to UPS employment. Both also told our investigator that no union steward appeared at their UPS orientation to make a presentation about submitting union paperwork.
Malungahu also stated that he had no recollection that Kendall told him he needed to re-sign membership and check-off papers with the local union when starting full-time work with UPS. All parties agree the local union provided nothing to Malungahu in writing notifying him that, if he wished to remain a union member, he was obliged to complete a new application for membership when starting full-time work at UPS and complete a new check-off authorization form.
We reviewed the membership application and check-off authorization Malungahu signed when hired by YRCW in 1999. It is a local union form to be completed by the applicant and submitted to the local union. It states, in relevant part: “I hereby authorize and direct you to deduct from wages due me … monthly dues.” The form includes blanks to be filled in by the applicant, including his name, address, SSN, phone, employer, and job title. The form listed Yellow Freight as Malungahu’s employer. Malungahu never revoked this authorization.
The form Malungahu completed more than twenty years later in September 2020 was similar. It authorized “my employer to deduct from my wages each and every month” monthly dues. The form includes blanks to be filled in by the member, including name, address, SSN, and employer. This form identified UPS as the employer. Neither the 1999 nor 2020 version of the form stated explicitly that it was valid only for the employer the applicant worked for at the time of signing. Instead, each form authorized, without specificity, “my employer” or “you” to deduct dues from earnings.
We also reviewed the TITAN dues record of Ryan Earl, who – like Malungahu – worked at YRCW and UPS simultaneously. The Remark section of the record included the following statement, dated October 31, 2019: “Shows on SSA list for UPS FT; keep on YRC billing for now until he quits YRC.” The Local Union 222 TITAN operator told our investigator that the SSA list reports which employees are full-time. It is issued for insurance purposes and is not a dues record. Nonetheless, the local union used it to note on Earl’s dues record that the local union would continue to bill YRCW for Earl’s dues until such time as he terminated at that employment and worked exclusively for UPS.
It is settled law that a member will retain good standing even though his dues are remitted late or not at all if he had signed a check-off and had sufficient earnings in the month from which the employer could have deducted dues. Constitution, Article X, Section 5(c); Dunn, E9 (October 31, 1995) Reynozo, 2005 ESD 18 (October 25, 2005), aff’d, 05 EAM 5 (December 8, 2005); Hicks, 2005 ESD 30 (December 5, 2005); Eligibility of Copley, 2010 ESD 27 (September 17, 2010); Eligibility of McCoy, 2016 ESD 69 (January 15, 2016) (check-off member retains eligibility if he had sufficient earnings on at least one day in a calendar month from which dues could be deducted); Eligibility of Temen, 2016 ESD 72 (January 16, 2016) (late remittance does not interrupt continuous good standing); Eligibility of Hawkins, 2016 ESD 89 (January 26, 2016), appeal withdrawn, 2016 EAM 9 (February 6, 2016); Eligibility of King, 2016 ESD 103 (February 10, 2016) (member who signed dues check-off but for whom LU never billed employer retained his eligibility under the check-off rule); Eligibility of Maddy, 2016 ESD 116 (February 22, 2016) (member retained continuous good standing where he reverted to truck driving after long stint as LU officer and had signed check-off authorization with trucking company decades before; the LU’s failure to bill for his dues did not affect his continuous good standing).
The present case is one of first impression. We conclude that the check-off rule is fully applicable to a check-off authorization signed when the member is employed by one employer, the authorization is never revoked, and the member commences work with a second employer, under circumstances where the local union is fully aware of the member’s change of employment at the time it occurs. Under the circumstances presented here – including specifically that the authorization form does not limit its application to a single employer – we hold the member is entitled to rely on an authorization for timely payment of his dues obligation, provided he has sufficient earnings from the employer to fund that obligation monthly. We are not persuaded by business agent Kendall’s assertion that he told Malungahu he had to complete new paperwork and “re-sign” with the union when moving to full-time employment with UPS, in part because Malungahu disputes the assertion, and in further part because the check-off authorization itself is not limited to a single employer. We are also not persuaded that Utah’s right-to-work statute requires a new check-off authorization card when an existing member moves from one employer to another, as the statute applies to union membership and not to check-off authorization.
For these reasons, we GRANT the protest and hold that Malungahu has not suffered an interruption in his continuous good standing by way of the missed dues payments in June, July, and August 2020. We find the local union was authorized by the check-off authorization Malungahu signed in 1999 while employed by Yellow Freight to deduct dues incurred in 2020 while employed by UPS.
We cannot at this time find that Malungahu is eligible for nomination in Local Union 222’s delegates and alternate delegates election because three months remain in the 24-month eligibility period, during which Malungahu must maintain continuous good standing in order to be eligible.
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
2020 ESD 24
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
Taylor Malungahu
tonganfob@gmail.com
Local Union 222
Spencer Hogue, Secretary-Treasurer
s.hogue@teamsterslocal222.org
Dale Varney
Dvarney3860@gmail.com
Jim Devine
jdevine@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com