Protest Decisions

March 1, 1996

VIA UPS OVERNIGHT

James Barnes

March 1, 1996

Page 1

James K. Barnes

28880 S.E. Folsom Road

Eagle Creek, OR 97022

Marcia S. Fortin

9787 S.E. Dundee Drive

Portland, OR 97266

Carol A. Duggan

10410 S.E. Flavel Court

Portland, OR 97266

Clayton D. Banry, Secretary-Treasurer

Teamsters Local Union 223

1230 N.E. 106th Avenue

Portland, OR 97220

James Barnes

March 1, 1996

Page 1

Re:  Election Office Case No. E-105-LU223-EOH

Gentlepersons:

Marcia Fortin and Carol Duggan were respectively nominated to run for delegate and alternate delegate to the International convention at Local Union 223’s nomination meeting on February 13, 1996.  By letter received by the Election Officer on February 15, 1996, James K. Barnes protests the eligibility of Ms. Fortin and Ms. Duggan to run for delegate or alternate delegate.  Mr. Barnes alleges that both candidates failed to pay dues in October 1994 and were placed on withdrawal as a result of a strike.  Thus, he contends, they have failed to maintain 24 months of continuous good standing as required by the Rules for the IBT 1995-1996 International Union Delegate and Officer Election (“Rules”).

Article VII, Section 1(a) of the Rules provides:

To be eligible to run for any Convention delegate, alternate delegate or International Officer position, one must:

James Barnes

March 1, 1996

Page 1

(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 TITAN record indicates that both candidates are on dues check-off.  No dues were posted for either individual for October 1994.  The investigation disclosed that both candidates are employed with Fred Meyer, Inc. (“Meyer”).  From September 10, 1994 to October 30, 1994, Ms. Fortin, Ms. Duggan, and approximately 250 other members of Local Union 223 were on strike from Meyer.  During October 1994, neither candidate had earnings from which dues could be deducted nor did either receive strike benefits from the IBT or Local Union 223.

While the IBT Constitution does provide for the payment of dues from strike benefits (Article XII, Section 14(a)), there is no provision for the payment of dues if strike benefits are not paid.  Haynes, E-089-LU283-EOH (February 22, 1996).  Indeed, the general secretary-treasurer has stated, in a letter to the president of Local Union 283 concerning a very similar issue, that it is the obligation of the member to remit dues if he or she receives no strike benefits.  Id.

The Election Officer is mindful of the hardships that can result on members who endure periods of unemployment due to strike.  However, members on strike who wish to maintain their eligibility to run for delegate must pay their dues in a timely fashion in the same manner that members incapacitated by illness or injury must continue the timely payment of dues to remain eligible.  See Coleman, E-162-LU710-CHI (January 9, 1991), aff’d, 91 - Elec. App. - 39 (January 17, 1991).  Any other rule would make eligibility depend not upon clear rules, but upon a case‑by‑case determination of the extent of individual hardship.  It is easy to see how the latter method could lead to arbitrary interpretation.  Id.

As a result, Ms. Fortin and Ms. Duggan have both failed to maintain 24 consecutive months of good standing with regards to dues payments prior to their nomination.  The candidates contend, however, that they did not cash-pay their dues during the strike because they were informed by an agent of the local union at a meeting for striking workers that they did not have to.  Such advice, however, does not excuse the candidates from the requirements of eligibility.  The Election Officer has previously held that statements of local union officers cannot vary or override the terms of the IBT Constitution or the Rules.  Randall,

E-002-LU328-EOH (September 6, 1995); See Baker, E-187-LU481-CLA (January 21, 1991).

James Barnes

March 1, 1996

Page 1

In addition, there is no evidence that Ms. Fortin and Ms. Duggan were advised that failure to pay dues for October 1994 would not affect their eligibility to run for delegate.   Through an automatic withdrawal process, striking workers were exempted from paying dues in October 1994.[1]  Because of this scheme, striking workers did not owe money to the local upon returning to work.  There is no evidence, however, that members were advised that this would not affect their eligibility to run for delegate or alternate.  Indeed, both candidates were aware that a striking colleague paid her October 1994 dues in cash in order to be eligible to vote in the local union officer’s election.

Because of their failure to pay dues in October 1994, neither Ms. Fortin nor

Ms. Duggan have maintained 24 consecutive months of good standing with regard to their dues payments prior to their nomination.  Accordingly, it is the determination of the Election Officer that neither Ms. Fortin nor Ms. Duggan is eligible to run for delegate or alternate delegate to the International convention.

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

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, D.C. 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

Christine Mrak, Regional Coordinator