IN RE: ELIGIBILITY OF DON EVANS, Local 31
Protest Decision 2006 ESD 87
Issued: February 22, 2006
OES Case No. E-06-026-020706-HQ
(See also Election Appeals Master decision 06 EAM 13)
Ross Peterson, a member of Local Union 31, filed an eligibility protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that Don Evans is ineligible for election as delegate or alternate delegate to the 2006 IBT Convention under the Rules.
Election Supervisor representatives Steven R. Newmark and Jeffrey Ellison investigated this protest.
Findings of Fact
TITAN records show that Evans paid dues for the 24-month eligibility period by cash. Each of these dues payments were timely, except for July 2005, which was not paid until August.
Investigation showed that Evans formerly was employed by the local union as the business agent working out of the office in Whitehorse, YT. During his union employment, he paid dues by check-off authorization. He was given notice of discharge in January 2003 but the discharge was not made effective until May of that year. Evans brought suit for wrongful termination and, in late 2005, obtained judgment in his favor. Among other remedies, the court ordered the local union to pay 22 months of back wages to Evans, commencing January 2003 and continuing through October 2004. Although Evans has remained unemployed until recently, the court did not award full back pay or reinstatement because Canadian law limits judicial authority to do so. The local union appealed the judgment; the appeal remains pending.
Commencing July 2003, Evans cash-paid his dues by remitting them to his wife, the office clerical employed in the Whitehorse office of the local union. Evans' wife then sent them to the main office of the local union in Vancouver, BC, some 2,900 kilometers distant. To maintain his continuous good standing, Evans paid his dues in advance and for months at a time. Thus, he made a 12-month payment in January 2004, a 6-month payment in December 2004, 3-month payments in August and October 2005, and another 6-month payment in November 2005.
The Whitehorse office lacks a TITAN terminal, so Evans' wife could not monitor Evans' "paid-through" status herself. Accordingly, she asked the TITAN operator in Vancouver to forward his dues receipts so that an accurate record could be maintained. The receipt TITAN generates shows the "paid through" month; this information allows the cash-dues member to diary when the next payment must be submitted.
The Vancouver office did not forward the TITAN receipt for Evans' January or December 2004 payments. The first TITAN receipt the Vancouver office sent to Evans was for the dues payment submitted in August 2005. The receipt for that 3-month payment showed a "paid through" date of September 2005, indicating that the July dues were paid late. When he made the August 2005 payment, Evans believed that he was already paid through July. Had he received the TITAN receipts that had been requested, he would have known that he was paid through June only.
Following the effective date of his 2003 discharge by the local union, Evans received severance and pension benefits from the Teamsters Canada and Teamsters National pension plans. At the same time, however, he sought and was available for work under the jurisdiction of the local union. He told our investigator that he visited and continues to visit the local union hall in Whitehorse at least weekly to review postings for open positions, and he has applied for those available jobs for which he is qualified.
In December 2005, Evans commenced work on a part-time basis as a school bus driver with Takhini Transport, a non-union bus operation in Whitehorse. In this position, Evans works 2 hours in the morning and 2 hours in the afternoon of each school day. Despite this part-time work, Evans remains available for and continues to seek Teamster employment.
Analysis
Article VI, Section 1 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; [and] (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."
While late payment of cash dues will generally render the member ineligible1 , we hold that Evans' late payment of dues for July 2005 does not interrupt his continuous good standing and render him ineligible. Evans' dues payment history in the years following his discharge by the local union demonstrated a sustained effort to maintain his continuous good standing. To insure timely payment, Evans requested TITAN receipts that would show him, according to the union's official records, when the next payment would be due. The failure by the Vancouver office of the local union to supply the receipts through 2004 and into 2005 placed Evans at the disadvantage of relying solely on his own records of payment without ready reference to TITAN, the official chronicle of dues payment history. Under these narrow circumstances, we will not find Evans ineligible because he made good faith efforts to pay his dues in advance, requested but did not receive the local union's official record of payment that would have given him notice of the due date for the next payment, and consequently was late one time because the local union failed to provide him with that information.
We turn now to the protest's contention that Evans has not been employed at the craft for the duration of the eligibility period.
Article VI, Section 2(b) states:
The active employment at the craft requirement may be excused by unemployment if, for the period of unemployment, the member was actively seeking and available for employment in the craft and not working outside the craft during such period of unemployment …
Working outside the jurisdiction of the local union will generally render a member ineligible for office. Wiggin, E121 (March 18, 1996), aff'd 96 EAM 151 (March 27, 1996). However, "members who are unable to find work in their craft who take temporary or part-time employment outside the craft while actively seeking and available for union employment" will not be penalized with a loss of eligibility because of this work. Id., see also Funk, E86 (February 20, 1996), aff'd 96 EAM 107 (February 28, 1996). Placement on a referral list for a Teamster employer is sufficient to establish the member's "willingness and intention to take employment in that craft should it become available." Funk, supra; see also Duncan, 2006 ESD 55 (January 26, 2006), aff'd, 06 EAM 9 (February 14, 2006). Moreover, work outside the jurisdiction will not affect continuous good standing for a member who is challenging a discharge.
For two reasons, Evans' work with Takhini Transport does not render him ineligible for delegate or alternate delegate. First, although the work is outside the craft, it is part-time; Evans has continued to pursue Teamster employment even though employed by Takhini. Second, Evans accepted the Takhini work while pursuing legal action to redress his discharge by the local union; as such, the non-union work does not constitute a break in continuous good standing.
Finally, the protest contends that Evans' receipt of severance and pension benefits renders him ineligible. We disagree. Such benefits are not automatically disqualifying. Henderson, E119 (February 27, 1996) (member who was available for and continued to seek Teamster employment was not disqualified by receipt of a pension in the interim).
Accordingly, we DENY the protest and hold Evans ELIGBLE to run for delegate or alternate delegate to the 2006 IBT Convention.
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 Supervisor in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for the appeal and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022
Fax: (212) 751-4864
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, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2006 ESD 87
1 See Williams, E15 (December 18, 1995) (member ineligible who made late cash payments five times during the eligibility period because he forgot to remit dues timely); Bard, E3 (September 20, 1995 (member who incurred dues delinquency through "oversight" ineligible).
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Ross Peterson
12408 193 B Street
Pitt Meadows, BC
V3Y 1A4
CANADA
Don Evans
174 Rainbow Road
Whitehorse, YT
Y1A 5E2
CANADA
sourdough@klondiker.com
Stan Hennessy, President
IBT Local Union 31
#1 Grosvenor Square
Delta, BC
V3M 5S1
CANADA
Gwen Randall
400 Fourth Avenue, SW
Suite 3000
Calgary, AB T2P 0J4
CANADA
grandall@davis.ca
Steven R. Newmark
1725 K Street, NW Suite 1400
Washington, DC 20005
snewmark@ibtvote.org
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com