Protest Decisions

IN RE: PATRICK DALY and DENNIS McCLERNAND,
Eligibility Decision 2001 EAD 141
Issued: February 6, 2001
OEA Case Nos.: E012511ME and E012512ME

See also Election Appeals Master decision 01 EAM 30 (KC)

On January 17, 2001, Local 77 held its nomination meeting for delegate and alternate delegate elections. By letter faxed to this office on January 25, 2001, Daniel Russell, a Local 77 member, filed a protest against Patrick Daly and Dennis McClernand, claiming them to be ineligible to run as candidates to the International Convention.

Election Administrator representative Lois M. Tuttle investigated this protest.

Under Article XIII, Sec. 2(b), pre-election protests, including protests regarding a member's eligibility, must be filed "within two working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested or such protest shall be waived." While the court-appointed Election Officers of past elections have not treated time limits as an absolute jurisdictional requirement in general protest cases, they have afforded little leeway in the case of late-filed eligibility protests, given the strict deadlines under which posting requirements, ballot printing and mailing schedules must be met. Thus, Election Officer Quindel has denied eligibility protests as untimely where the protester filed as little as one or two business days late. See Murdoch, E123 (March 18, 1996)(protest held untimely where filed three working days after protester knew of candidate's nomination); Milne, E71 (January 31, 1996)(protest held untimely where received by fax on fourth working day after protester knew of candidate's nomination); Mantucci (January 22, 1996)(protest held untimely where filed three business days after protester knew of candidate's nomination). We have followed this precedent. See Lawrence, 2000 EAD 19 (September 8, 2000).

Mr. Russell acknowledges that he attended the January 17, 2001 nomination meeting, and that he there learned of the candidates' nominations. He further acknowledges that he did not send or attempt to send his eligibility protest to the Election Administrator's office until January 25, 2001, six business days after the nomination meeting date. Mr. Russell could not provide any reason for his late filing to our investigator.

As such, the Election Administrator finds Mr. Russell's protests to be untimely filed and DENIES both as such.

Even had these protests been timely filed, investigation reveals that both candidates would be eligible to run as delegates or alternate delegates.

Mr. Daly's Eligibility

The TITAN record shows that Mr. Daly, a checkoff member and employee of the Pennsylvania Turnpike Commission, was on withdrawal for a period of five months, four of which (January through April 1999) come within the eligibility period. During those months, Mr. Daly paid no dues.

Investigation reveals that Mr. Daly was on sick leave and receiving 65% of his regular income through his employer's sickness and accident plan during the period of withdrawal. Whether or not Mr. Daly took his withdrawal voluntarily is a matter of some mystery. On January 30, 2001, Margarete Connor, the local's TITAN operator, faxed a copy of what purports to be a withdrawal card request signed by Mr. Daly on or about November 30, 1998, around the time that Mr. Daly got sick. However, Mr. Daly emphatically denies that he signed such a card or that he ever would, given that he fully understands (and understood back in Fall 1998) its implications in terms of running for local union office or for delegate candidacy. To back up his claim, Mr. Daly has also faxed to this office several specimens of his handwritten signature, including those contained on checks and legal documents. The signatures contained on the other documents which Mr. Daly faxed to this office do, in fact, appear substantially different from the one which appears on the November 30, 1998 withdrawal card request. Mr. Daly theorizes that someone from the local has fabricated the November 30, 1998 withdrawal card in order to try to deprive him of his good-standing status. Mr. Daly would not consent to name any specific individual or individuals, but stated that one or more persons exist who would wish to deny him the chance to run as a delegate or alternate delegate.

Mr. Daly further denies knowing that the local put him on withdrawal until being contacted by our investigators as a result of this protest. Additionally, he denies knowing that his employer, the Pennsylvania Turnpike Commission, had not been transmitting dues for the months in question until the present time. Mr. Daly states that he has no problem making up the dues in question and will pay the arrearage as soon as possible.

Election Officer Quindel has held that where a member is issued a withdrawal card not at the member's request but as a result of a local union policy, the member's eligibility will not be affected so long as he or she had earnings from which dues could be deducted during the period of automatic, unrequested withdrawal. See Zier, E19 (January 29, 1996), aff'd 96 Elec.App. 72 (2/1/96); Hiltz, E29 (January 17, 1996). Although it is unclear in this case exactly how or why the withdrawal occurred, we find that Mr. Daly has provided sufficient evidence to verify that the withdrawal was not voluntary. Additionally, his employer has additionally verified that Mr. Daly had sufficient income from his sick and accident plan to pay his dues during the period at issue.

Thus, in accordance with the above-cited rulings as to involuntary, unrequested withdrawals and based on evidence provided by Mr. Daly, we find Mr. Daly ELIGIBLE and accordingly DENY the protest against him on its merits.

Mr. McClernand's Eligibility

The TITAN record shows that Mr. McClernand, also a checkoff member and employee of the Pennsylvania Turnpike Commission, had late checkoff payments for the months of August through November 2000. Investigation reveals that these late checkoffs occurred after Mr. McClernand suffered a work-related injury on July 9, 2000. Until he returned to work in September or October 2000, Mr. McClernand received 65% of his regular income through his employer's sickness and accident plan. Dotti Ross, a payroll representative from the Commission, confirmed that Mr. McClernand earned enough income during these months from his sick and accident monies to pay his dues over the months in question.

Under Article X, Sec. 5(c) of the IBT Constitution, 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 for that month." Mr. McClernand's employer has verified that he had sufficient earnings from which dues could have been deducted in all months in question.

Accordingly, we find Mr. McClernand to be ELIGIBLE and thus DENY the protest against him on its merits.

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.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

Wiliam B. Kane, Mideast Area Regional Director

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