Protest Decisions

IN RE: TONY BACA,
Eligibility Decision 2001 EAD 90
Issued: January 22, 2001
OEA Case No. E010818WE

On December 18, 2000, Tony Baca, a member of Local Union 630, filed a request with this office to verify his eligibility. Our office investigated his request. Mr. Baca's TITAN record revealed that he had been on withdrawal between June 2000 and August 2000. It also showed that he had not paid dues for July 2000.

Investigation revealed that Mr. Baca suffered a back injury on June 12, 2000, at which point he went on workers' compensation until late August 2000 or early September 2000. During the period he was injured, Mr. Baca did receive sufficient income from his employer to pay dues for every month within the 24 month period. (Workers' compensation is not considered to be income for this purpose.) Mr. Baca stated that he took a withdrawal voluntarily in late August 2000, after receiving a letter from his local union. He stated that he then deposited his withdrawal card in early September 2000. On January 4, 2001, Election Administrator representative Lois M. Tuttle sent Mr. Baca a "Verification of Eligiblity" form, mistakenly believing that Mr. Baca came within the limited exception, found at Article II, Sec. 4(a)(1) of the IBT Constitution, whereby a member who voluntarily takes a withdrawal within the 24 month eligibility period may be eligible to run as a delegate or alternate delegate. That exception provides:

[I]f a member on withdrawal deposits his card in the month immediately following the month for which it was effective and pays his dues for both months in a timely manner as provided by Article X, Section 5(c), such period of withdrawal shall not be considered a break in continuous good standing in the Local Union.

On January 6, 2001, Mr. Baca ran as an alternate delegate at his local's nominations meeting. On January 8, 2001, Kurt Larsen, the local's president, filed a timely protest to Mr. Baca's nomination, stating that Mr. Baca failed to maintain membership in good standing for a period of 24 consecutive months prior to the month of his nomination, in that he voluntarily went on withdrawal for the month of July 2000.

On further consideration, we recognize that Mr. Larsen is correct. Further investigation revealed that Mr. Baca's employer in fact sent him a check in July 2000, neglecting to deduct his dues for that month. In August 2000, Mr. Baca received a letter from his local informing him of the dues arrearage and enclosing a withdrawal card that he could use should he wish to withdraw in lieu of paying the arrearage. Mr. Baca chose to sign the withdrawal card.

Under these facts, Mr. Baca did not come within the exception to the general rule regarding voluntary withdrawals, which would cut off his eligibility. Although Mr. Baca signed his withdrawal card in August 2000, his acceptance of the withdrawal dated back to June 2000, the last month for which dues were paid. Mr. Baca did not deposit his card until August 2000, two months after the date for which the card was issued. And Mr. Baca clearly chose not to pay his dues for July 2000.

Therefore, we must REVERSE our prior finding determining Mr. Baca eligible, and GRANT the protest against him. Accordingly, we find Mr. Baca INELIGIBLE to run as 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. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator 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

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Administrator, 727 Fifteenth Street, N.W., 10^th Floor, Washington, DC 20005, Facsimile (202) 454-1501. A copy of the protest must accompany the request for a hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

Christine M. Mrak, West Area Regional Director

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