Protest Decisions

IN RE: TED RUSSELL,
Eligibility Decision 2001 EAD 203
Issued: February 28, 2001
OEA Case No.: E021211AT

On February 9, 2001, Local 71 held its nomination meeting for delegate and alternate delegate elections. On February 12, 2001, James Runyon, the local's secretary-treasurer and a candidate for delegate on the Carter-Runyon Team Slate, timely filed an eligibility protest against Ted Russell, candidate for delegate on the Ted Russell Slate.

Election Administrator representative Lois M. Tuttle investigated this protest.

To be eligible to run for delegate or alternate delegate, a member must be in continuous good standing with his local union, with his dues paid to the local union for a period of 24 consecutive months prior to the month of the nomination with no interruption in active membership due to suspensions, expulsions, withdrawals, transfers or failure to pay fines or assessments. Article VI, Section 1(a)(1) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). All members are responsible for paying dues to their local unions on or before the last business day of each month within the 24-month period.

Before Local 71's nomination meeting, Russell filed a timely eligibility verification request with our office. Our office investigated his case and sent him a verification of his eligibility on February 2, 2001.

On February 12, 2001, Runyon filed his protest claiming Russell to be ineligible because he did not have any earnings from which dues could have been deducted in November or December 2000.

Russell's TITAN record shows that he is a Yellow Freight employee on dues checkoff who did not timely pay dues for the month of December 2000. Our investigation reveals that Russell temporarily stopped working on October 12, 2000, immediately after his house burned down, and did not resume work until mid-January 2001. As of October 12, 2000, Russell's dues were paid through November 2000 as a result of his employer's practice of paying all of its employees' dues one month in advance.

Russell admits that he did not pay any dues on a cash basis. However, in early December 2000, he received a check for paid vacation for the last week of November 2000. His employer did not deduct dues from that paycheck because of its practice to deduct dues from the first pay period of the month rather than the last. Russell had no earnings from which dues could have been deducted in December 2000.

Article X, Section 5(c) of the IBT Constitution provides that where a checkoff member's employer fails to make a "proper deduction" on his behalf during any month in which the member has sufficient earnings from which dues could be deducted, the member "shall not lose good standing status for that month." Election Officers have held that as long as a member has earnings in a particular month from which dues could be deducted, the member will not lose good standing status for that month even if the employer designates a particular pay period in which dues are regularly deducted. In Dunn, E9 (October 31, 1995), the member was held to be eligible even though he did not work in the first week of the month when dues were deducted, but had sufficient income that month from which dues could have been deducted. Election Officer Quindel cited to notice of this interpretation given in the September 1993 issue of the Teamster magazine, which stated:

Q: What happens if my employer always deducts dues during one particular pay period in each month and I do not get paid in that particular period?

A: As long as a member has earnings in the month, even if there were no earnings in the pay period that the dues were deducted, a member does not lose good standing status. It would be prudent to check your pay stubs every month to make sure the proper deduction was taken, and to request the employer make a double deduction the next month if a deduction was missed.

Here, Russell admittedly paid no dues for December 2000, and had no earnings in December 2000 from which dues could be deducted. However, his employer did have a practice of paying its employees' dues one month in advance, and would have paid Russell's dues for December 2000 out of his November 2000 earnings had they come within the first pay period of the month, rather than the last pay period. Under these facts, we hold that Yellow Freight's failure to deduct Russell's December 2000 dues from his last November 2000 paycheck constituted a "fail[ure] to make a proper deduction" during a month in which Russell had earnings from which the dues could have been deducted, such that Russell would not lose good standing status for the month of December 2000.

Accordingly, we uphold our prior ruling and DENY Runyon's protest. We find Russell ELIGIBLE to run as a 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, shall specify the basis for that appeal, and shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon the parties listed above, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street, N.W., 10^th Floor, Washington, D.C. 20005, facsimile (202) 454-1501, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

J. Griffin Morgan, Atlantic Area Regional Director

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