Eligibility of Gallegos and Eligibility of Peoples, 2021 ESD 47
OFFICE OF THE ELECTION SUPERVISOR
for the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
IN RE: ELIGIBILITY OF ) Protest Decision 2021 ESD 47
CHRIS GALLEGOS, ) Issued: January 26, 2021
-and- ) OES Case No. E-058-012121-FW
ELIGIBILITY OF )
MICHELLE PEOPLES, )
)
Local Union 952. )
____________________________________)
Eric Jimenez, member, principal officer of Local Union 952, and candidate on the Members 1st slate, 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 alleged that Chris Gallegos and Michelle Peoples are ineligible for nomination in Local Union 952’s delegates and alternate delegates election.
Election Supervisor representative Jeffrey Ellison 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 nominations meeting for Local Union 952’s delegates and alternate delegates election occurred on 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.
Gallegos and Peoples paid their dues to Local Union 952 by check-off authorization, by which both authorized their employers to deduct – or check off – dues from the compensation they earned and to remit those dues to the local union. Under the check-off rule, a member on check-off retains his/her good standing even if dues were remitted late or not at all by the employer, provided the member 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); Eligibility of Montes, 2011 ESD 114 (February 16, 2011).
With these rules establishing the decisional framework, we turn now to the cases before us.
GALLEGOS - ELIGIBLE
For the period January through December 2019, Gallegos’s dues were paid by the local union, first because he was a union steward for whom the bylaws authorized such payment, and subsequently because he was employed directly by the local union. When his employment with the local union ended in late December 2019, Gallegos returned to Albertsons, his previous employer, in early January 2020, an employer which is under the jurisdiction of the local union. Gallegos had previously signed a check-off authorization for dues deduction by Albertsons, and that authorization remained in effect.
Albertsons did not deduct dues from compensation Gallegos earned in January 2020. Gallegos produced proof of earnings for work he performed at Albertsons in that month, and the earnings far exceeded his monthly dues obligation. These facts alone establish that Gallegos was protected by the check-off rule, and the failure of the employer to deduct and remit dues to the local union in that month did not constitute an interruption in his continuous good standing.
Our conclusion is reinforced by further investigation. Gallegos presented evidence that the reason Albertsons did not deduct dues from his compensation is because the local union did not list him on the bill it sent to Albertsons for January dues. Patti Moser, office manager of Local Union 952, contradicted Gallegos, telling our investigator with confidence that Gallegos indeed was on the January 2020 Albertsons dues bill. We requested that Moser produce that bill, but neither she nor anyone in local union administration was able to produce it. The only explanation given was that the bill was issued to Albertsons “before we got here”[1] and was archived. Our investigator was also told that the January 2020 bill for union dues should have been, and likely was, sent to Albertsons in December 2019. This statement, which we accept as true, explains why Gallegos’s name was not on the bill because he was a local union employee at the time the bill was generated in December 2019. Thus, Albertsons did not deduct dues from Gallegos’s compensation because the bill from the union did not direct that it do so. The check-off rule is intended to protect members from the circumstance where the employer (through late deduction, absence of deduction, or late remittance) or the union (by not including the member’s name on the dues bill) does not take the action the member has authorized it to take to obtain the member’s dues. A month where this occurs will not interrupt the member’s continuous good standing and render him ineligible for nomination, provided he had sufficient compensation to fund those dues, as Gallegos did here.
While the facts explain fully why there was no dues deduction for Gallegos in January 2020, the check-off rule will protect a member who has sufficient earnings to fund his dues obligation even in a month where the failure to deduct and remit is unexplained. Regardless of whether the reason for non-payment of authorized checkoff dues is apparent, if no dues were deducted and remitted from a member’s compensation, the local union’s remedy is to give the member notice that dues have not been remitted and permit the member thirty days in which to pay the dues in order to retain good standing for that month. IBT constitution, Article X, Section 5(c).
Here, the local union did not give Gallegos notice that dues were owing for January. Rather, Gallegos told our investigator that he noticed Albertsons failure to deduct dues on his own by reviewing his check stubs, which prompted him to go to the local union hall on January 28, 2020 and present a check for $80 at the dues window. We reviewed the canceled check, which verifies the amount, the check date, and the payee. The local union disputed to our investigator that the dues check was presented on January 28; office manager Moser stated that the check was presented February 12, 2020, the same date the payment was entered into the TITAN system.[2] We need not resolve the dispute between Gallegos and the local union concerning the date he paid his January dues. Given the absence of notice from the local union to Gallegos that it had not received checked-off dues for him for January, the 30-day period permitted him by the IBT constitution to pay the dues would be satisfied regardless of whether the payment was received by the local union on January 28 or February 12, 2020.
Accordingly, we find Gallegos ELIGIBLE for nomination and DENY this aspect of the protest.
PEOPLES – INELIGIBLE
Peoples paid her dues timely by check-off authorization until she sustained a work-related injury in August 2019. She was off work injured from that time until she returned to work in January 2020. In the interim, she had no compensation from the employer from which dues could be deducted, and she did not make timely monthly dues payments to the local union. To maintain the continuous good standing necessary to be eligible for nomination, dues must be paid even though the member is out of work through no fault of his or her own. Stankiewicz, E37 (January 25, 1996) (on workers’ compensation).
Accordingly, we find Peoples INELIGIBLE for nomination and GRANT this aspect of the protest.
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 47
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
Chris Gallegos
chrisgallegos@verizon.net
Michelle Peoples
Gmaertz952@gmail.com
Eric Jimenez
Lifelongteamster@yahoo.com
Local Union 952
Team952@aol.com
Michael Miller
Miller.michael.j@verizon.net
Deborah Schaaf
dschaaf@ibtvote.org
Jeffrey Ellison
EllisonEsq@gmail.com
[1] A change of local union administration occurred following Fall 2019 local union officers elections, with new officers taking over effective January 1, 2020.
[2] Local union staff produced a TITAN receipt reflecting the February 12 date. The receipt also bore the date January 26, 2021, the date this decision issued, as the date it was printed. Generally, we do not accept a TITAN receipt date as definitive proof of the date of dues receipt unless the receipt’s date of printing matches the date the dues were posted to the TITAN and is produced to us by the member. In such a circumstance, the receipt could establish that the local union produced it to the member at the time dues were paid. No such corroborative evidence is present here to establish February 12, 2020 as the date Gallegos remitted the payment. Instead, the receipt is proof only of the date the payment was entered into the TITAN system. In Kelly, 2020 ESD 13 (August 25, 2020), Moser issued a dues receipt to another member dated July 8, 2020, even though the check date and video proof showed that the payment was made more than a week earlier. Id., p. 2. The local union also produced a handwritten log, in the hand of a local union employee, bearing the February 12 date, that it said evidenced Gallegos’s appearance at the local union that day to pay his dues.