Protest Decisions

              February 12, 1996

VIA UPS OVERNIGHT

Daniel Green

February 12, 1996

Page 1

Daniel Green

25 Martha Eaton Way #1203

Toronto, Ontario M6M 5B7

Canada

Executive Board

Teamsters Local Union 938

1194 Matheson Blvd., East

Mississauga, Ontario L4W 1Y2

Canada

Douglas Power, Secretary-Treasurer

Teamsters Local Union 419

1890 Meyerside Drive

Mississauga, Ontario L5T 1B4

Canada

Tom Fraser, President

Teamsters Local Union 419

1890 Meyerside Drive

Mississauga, Ontario L5T 1B4

Canada

Daniel Greensdale

31 Larmont Street

Aorora, Ontario L4G 1V6

Canada

Len Morrison

127 Kings Street

Woodville, Ontario K0M 2T0

Canada

Frank Leal

20 Hesp Drive

Bolton, Ontario L7E 2R5

Canada

Theodore Gallonie

52 Haida Drive

Aurora, Ontario L4G 3C8

Canada

Daniel Green

February 12, 1996

Page 1

Re:              Election Office Case Nos.              P-314-LU938-CAN

E-073-LU419-EOH

Gentlemen:

Daniel Green

February 12, 1996

Page 1

A pre-election protest (Case No. P-314-LU938-CAN) was filed pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election ("Rules") by Daniel Green, a candidate for delegate from Local Union 419, against the Executive Board of Local Union 938.  The protester claims that he was barred from entering Local Union 938's nomination meeting on January 14, 1996 at which he intended to run for delegate, in violation of the Rules. 

The charged party responds that Mr. Green was not entitled to attend the meeting because he had not paid any dues or initiation fees to Local Union 938.

Mr. Green was nominated as a candidate for delegate at Local Union 419's nomination meeting on January 28, 1996.  The following day, Douglas Power, the secretary-treasurer of Local Union 419, filed a protest with the Election Office (E-073-LU419-EOH), claiming that

Mr. Green is ineligible to be a candidate because he did not maintain continuous good standing in the local union for 24 months, as required by the IBT Constitution.[1]  Furthermore, Mr. Power contends that Mr. Green is currently a member of Local Union 938 because his employer was bought by a company whose employees are represented by that local union.  As these protests raised similar factual and legal issues, they were consolidated by the Election Officer.

The protests were investigated by Canadian Regional Coordinator Gwen Randall and Jonathan O'Neill of the Election Office. 

Until very recently, the protester worked for Cannet Freight ("Cannet") and was a member of Local Union 419.  On October 20, 1995, Cannet was purchased by Clarke Transport ("Clarke") whose employees are represented by Local Union 938.  The protester continued to work at Cannet Freight until December 29, 1995, when Clarke closed the Cannet facility and notified the employees that a general lay-off would take place at the end of the work week due to a shortage of work.  The notice stated that employees could contact Clarke in January 1996 about the availability of work; Mr. Green did so, and worked two days during January on a casual basis.

The protester states that when he learned in October 1995 of Clarke's purchase of Cannet Freight, he requested a transfer card from his local union to Local Union 938.  His request was refused.  Mr. Green received an honorable withdrawal card, which he did not request, from Local Union 419 dated January 16, 1996, along with a receipt stating that his dues were paid through the month of December 1995.  According to officers of the local union, it is their policy to issue withdrawal cards to employees of companies which close down, even if the employees do not request withdrawal cards.[2]

Daniel Green

February 12, 1996

Page 1

As Mr. Green desired to run for delegate to the International convention, he submitted an eligibility verification request to the Election Office on December 28, 1995.  Due to the confu-sion at that time over Mr. Green's membership situation, the Election Officer advised him to seek nomination in both Local Union 419 and Local Union 938, and his eligibility would be determined following the meetings.

When Mr. Green arrived at the Local Union 938 nomination meeting on January 14, 1996, he was denied entry.  The nomination meeting in Local Union 419 took place on

January 28, 1996.  The protester submitted a written nomination form to the Regional Coordinator in advance of the meeting, as permitted by Article II, Section 5(f) of the Rules.  

Mr. Green attended the Local Union 419 nomination meeting and accepted his nomination there. 

In E-073-LU419-EOH, Mr. Power asserts that Mr. Green did not maintain continuous good standing in Local Union 419 for 24 months prior to the nomination meeting.  Article VII, Section 1(a)(1) of the Rules states that in order to be eligible to run for delegate in a local union, a member must be "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." 

Mr. Green's TITAN record indicates that he was on dues check-off at Cannet Freight and that his dues payments were remitted late to Local Union 419 from July 1994 to September 1995.[3]  From October 1995 to January 1996, no dues were posted for Mr. Green.  The TITAN record lists Mr. Green as a member of Local Union 419.

Mr. Green submitted pay stubs to the Election Officer which show that he had sufficient earnings from July 1994 to December 1995 from which dues could have been deducted.  Under Article X, Section 5(c) of the IBT Constitution, dues must be paid on or before the last business day of the month.  Section 5(c) continues:

Payment of such dues after their due date shall not restore good standing status for such month or months in computing the continuous good standing required by Article II, Section 4 of this Constitution as a condition of eligibility for office.  However, a member on dues checkoff whose employer fails to make a proper deduction during any month in which the member has earnings from which the dues could have been deducted, shall not lose good standing status for that month.

Daniel Green

February 12, 1996

Page 1

In accordance with this provision, Mr. Green cannot be penalized for the action of his employer in remitting his check-off dues to the local union in an untimely manner from July 1994 to September 1995 and failing to remit his dues at all from October to December 1995.

In regard to October to December 1995, officials at Clarke Transport informed the Election Officer that Cannet deducted dues for its IBT employees for October, November and December of 1995 but did not send them to Local Union 419.[4]    According to the TITAN operator at Local Union 419, Cannet took the position that it was Clarke's responsibility to remit the dues and that Clarke agreed to do so on January 10, 1996.  The investigation conducted by the Election Officer, however, indicates that such payment has not yet been made.  Nevertheless, as stated above, Mr. Green had earnings from which dues could have been deducted during this period.                 

Although Local Union 419 issued a withdrawal card to Mr. Green on January 16, 1996,  with a receipt indicating that his dues were paid through December 1995, local union officers told the Regional Coordinator that they have not actually received dues from Cannet for

Mr. Green since August 1995.  Local Union 419 maintains that Mr. Green and the other former Cannet employees became members of Local Union 938 on January 1, 1996 because on that date they were put on the seniority list at Clarke.[5]   Local Union 419 has not transferred these employees to Local Union 938, the officers state, because technically they were laid off from their jobs and, furthermore, the local union has not received the dues payments from Cannet owed for these members.

Local Union 938 officials agree that the former Cannet employees are now members of their local union.  However, they state that the Cannet employees will not be transferred until Clarke remits the dues owed on their behalf to Local Union 938.

On January 30, 1996, Mr. Green went to Local Union 419, deposited his withdrawal card with Secretary-Treasurer Power, and gave him a certified check in the amount of $288.00, representing six months’ dues payments.  Mr. Green states that he made the check out to "Teamsters Union" because Local Union 419 did not know which local union should be the payee.  As of February 7, 1996, Mr. Green’s TITAN record did not reflect this payment of dues.   According to the Local Union 419 TITAN operator, she asked Mr. Green on January 30 whether he wanted the check credited to his dues starting with September 1995, or to his dues for January 1996 forward.  Mr. Green replied that he did not know and that the local union should just hold onto the check.  Consequently, the TITAN operator stated the check has remained in the local union office and has not been posted to TITAN.

Daniel Green

February 12, 1996

Page 1

In the view of the Election Officer, Mr. Green has been caught up in a maelstrom not of his own making.  His former employer, Cannet Freight, remitted his dues to Local Union 419 in an untimely fashion for over a year, then did not remit them at all for October, November, and December 1995.  Because of Cannet's negligence, Local Union 419 claims that Mr. Green is ineligible to run for delegate as he has not been a member in continuous good standing for the

24 months prior to January 1996.  Local Union 419 also asserts that Mr. Green is a member of Local Union 938; however, when Mr. Green requested a transfer to that local in October of 1995, after learning that Cannet was being purchased by Clarke Transport, Local Union 419 denied his request.  Rather, the local union placed Mr. Green involuntarily on withdrawal status on

January 16, 1996. 

Following the Election Officer's advice, Mr. Green went to Local Union 938's nomination meeting on January 14, 1996 with the intent of being nominated.  The local union barred his entry to the meeting, contending that he had not paid dues or an initiation fee.  On January 28, 1996, Mr. Green attended the Local Union 419 nomination meeting and was nominated as a candidate for delegate.

Obviously, Mr. Green cannot run for delegate in two local unions.  Similarly, he should not be excluded from being a candidate in both locals based upon the transfer dispute between these two local unions.  The Election Officer finds that while Mr. Green attempted in good faith to transfer to Local Union 938, the local is technically correct that it had received neither dues nor an initiation fee from Mr. Green by the date of its nomination meeting.   On the other hand,

Mr. Green was properly nominated in Local Union 419, the local to which he has belonged for many years, and the Election Officer sees no reason why he should not be permitted to remain on the ballot.  Under the Rules, Mr. Green is eligible to run for delegate in Local Union 419 as it was the fault of his employer that his dues were remitted late or not remitted at.  This does not interrupt Mr. Green's good standing in the local union.

For the foregoing reasons, both protests are DENIED.  Mr. Green is eligible to run as a delegate candidate in Local Union 419 and shall remain on that ballot.

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 and Watkins

885 Third Avenue, Suite 1000

New York, NY 10022

Fax (212) 751-4864

Daniel Green

February 12, 1996

Page 1

Copies of the request for hearing must be served on the parties listed above as well as upon the Election Officer, 400 North 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

Gwen Randall, Regional Coordinator