Protest Decisions

              August 14, 1998

VIA UPS OVERNIGHT

Larry M. McDonald

August 14, 1998

Page 1

Larry M. McDonald

11712 Bishops Content

Mitchellville, MD 20721

George N. Davies, Esq.

Nakamura & Quinn

Landmark Center

2100 First Avenue North

Suite 300

Birmingham, AL 35203

Garnet Zimmerman, President

Teamsters Local Union 31

1 Grosvenor Square

Delta, BC  V3M 5S1

CANADA

Don Davies, Esq.

Teamsters Local Union 31

1 Grosvenor Square

Delta, BC  V3M 5S1

CANADA

James P. Hoffa

2593 Hounds Chase

Troy, MI  48098

James P. Hoffa

c/o Patrick J. Szymanski, Esq.

Baptiste & Wilder

1150 Connecticut Avenue, NW

Suite 500

Washington, DC  20036

Bradley T. Raymond, Esq.

Finkel, Whitefield, Selik,

  Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI  48334

Roy A. Finley, Sec.-Treas.

Teamsters Local Union 362

1200A 58th Avenue, SE

Calgary, AB  T2H 2C9

CANADA

Martha Walfoort, Esq.

James and Hoffman

1146 19th Street, NW

Sixth Floor

Washington, DC  20036

Larry M. McDonald

August 14, 1998

Page 1

Re:  Election Office Case No. E-132

        Decision on Remand

Gentlepersons:

On July 6, 1998, Larry M. McDonald, a member of Local Union 464 and candidate for Teamsters Canada Vice - President, filed an eligibility protest pursuant to Article XIV, Section 2(b) of the Rules for the 1995-1996 IBT International Union Delegate and Officer Election (“Rules”) of the Election Officer’s finding that he was ineligible to be a candidate for International office. 

Larry M. McDonald

August 14, 1998

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1. Procedural Background

On July 9, 1998, the Election Officer issued a decision reversing his original finding and concluding that Mr. McDonald was eligible to run for International office.  The Election Officer had initially determined Mr. McDonald was ineligible due to a two-month gap in dues payments during the course of a voluntary transfer from Local Union 362 to Local Union 424.  The Election Office conducted an investigation that included interviewing Mr. McDonald, and officials and employees of Local Unions 362 and 424 who had knowledge of the transfer, and obtaining documents relevant to the transfer.  As a result of this investigation, the Election Officer ruled that Mr. McDonald was eligible.  The investigation established that Mr. McDonald made reasonable efforts to pay his dues timely but that Local Union 424 failed to process his transfer promptly, resulting in a two-month gap in dues payments.  Because Local Union 424 had frustrated Mr. McDonald’s efforts to pay his dues on time, the Election Officer interpreted the 24-month continuous good standing provision of the IBT Constitution under a “reasonableness standard” developed and applied by the IBT in similar cases involving eligibility for office.  The Election Officer’s adoption of the IBT’s reasonable interpretations of its Constitution has been approved by the Election Appeals Master.  See Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995).

Garnet Zimmerman, a candidate for Teamsters Canada Vice - President, James P. Hoffa, a candidate for general president, and Roy Finley, secretary - treasurer of Local Union 362 appealed the Election Officer’s decision to the Election Appeals Master. 

On July 27, 1998, after a hearing on the matter, the Election Appeals Master remanded the protest decision to the Election Officer.  The Election Appeals Master stated:

It is uncontested the Mr. McDonald paid no dues on a timely basis to any local for the months of April and May, 1997.  Curiously, in his submission on appeal, Mr. McDonald asserts that he in fact “transferred membership from Local 362 to Local 424 on March 31, 1997.”  It is therefore difficult to understand why he didn’t then send in his April, May and June dues checks to Local 424 in accordance with the advance payment practice he says he routinely followed.

It is also uncontested that his January, 1997 dues were not posted at Local 362 until February 4, 1997.  The Secretary Treasurer of that Local has submitted proof on appeal that Mr. McDonald’s January dues check was in fact received on February 4.  This evidence was not mentioned by the Election Officer in his decision declaring Mr. McDonald eligible.

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August 14, 1998

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The Election Officer concluded that he could excuse Mr. McDonald’s failure to timely pay his dues because the IBT has typically applied a lenient rather than strict standard in such cases.  As pointed out by counsel for both Local 31 and James Hoffa on appeal, however, it appears that the Election Officer merely asked IBT law department personnel to provide comparative cases from their files, and they produced only four such cases, all leading to findings of eligibility.  Counsel cites the decision of former General President Ron Carey in the case of Local 31 member Stan Hennessy, to the contrary, a matter not apparently reviewed by the Election Officer.

(Emphasis original.)  98 - Elec. App. - 363 (KC) at 2.  The Election Appeals Master remanded the matter for the following purposes:

1. To review all cases in the IBT legal files implicating the strict/lenient standard that the Election Officer has identified as controlling this matter;

2. To consider the Local Union 362 submission of evidence, initially made in the Election Appeal Master’s hearing, to support a possible finding that Mr. McDonald’s January dues check was in fact received on February 4, 1997;

3. To respond to Mr. Hoffa’s appeal argument at page 5 of Mr. Hoffa’s position statement culminating in the assertion that “the fact that Mr. McDonald did not hear from Local 424 did not allow Mr. McDonald to ignore his obligation to pay dues.  Mr. McDonald knew that he had to pay dues to some Local Union in order to maintain his continuous good standing.  He did not make any payment to Local 362.  He did not make any payment to Local 424.  He did not pay dues to any Local for either April or May 1997.”  In addition, Mr. McDonald was to be pointedly examined on this issue.

On remand, the Election Office has reviewed all pertinent cases in the IBT legal files.  An analysis of those decisions is set forth in Part III.  The Election Office also collected additional evidence and interviewed Messrs. McDonald and Finley, as set forth in Part IV.  Finally, in Part V, the Election Officer addresses Mr. McDonald’s gap in dues payment and the arguments raised by Mr. Hoffa.  Mr. McDonald was interviewed specifically on the matter of his dues payments in 1997 at the time of the transfer from Local Union 362 to Local Union 424.

2. Summary of Decision

Larry M. McDonald

August 14, 1998

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The Election Officer adheres to his decision finding Mr. McDonald eligible to run for IBT International office in the Rerun Election.  Regarding the dues delinquency in April and May 1997, under internal IBT precedent, Mr. McDonald took reasonable steps to pay his dues upon transfer.  His payments were delayed due to circumstances beyond his control, the admitted failure by the transferee local union to timely process his transfer.  Regarding the late posting by Local Union 362 of Mr. McDonald’s  January, 1997, dues, the evidence that Mr. McDonald mailed his dues for timely receipt in Canada and that factors outside of Mr. McDonald’s control interfered with the timely posting of his dues support an inference that his dues were received on time.

3. The Use of the Reasonableness Standard

The Rules provide that to be eligible to run for an International Officer position, a member must:

[b]e 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.

Rules, Article VII, Section 1(a)(1).  This standard is adopted from the IBT Constitution at Article II, §§ 4(a)(1) and 4(a)(3).  Under the Constitution, to be considered timely, dues owed for a particular month must be paid on or before the last business day of that month.  Article X, Section 5(c).  While a member who fails to make timely payment can make up the arrears and restore good standing for purposes of participating in union affairs as a member, “[p]ayment of such dues after their due date shall not restore good standing status for such month or months in computing the continuous good standing status required by Article II, Section 4 of this Constitution as a condition for eligibility for office.”  Id. 

Pursuant to the remand, the Election Officer requested from the IBT all decisions implicating “the strict/lenient standard issue that the Election Officer has identified as controlling this matter . . . .”  96 - Elec. App. - 363 (KC) (July 27, 1998) at 2.  During the initial investigation, the IBT legal department explained their understanding of how the standard applied and submitted four cases from their files to the Election Officer as support.  Their legal files encompass all of the eligibility decisions dating from 1994 to the present.[1]  The Election Officer received all of these documents. 

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August 14, 1998

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The documents received from the IBT legal files included 102 cases involving eligibility of members to run for elected office, all of which were reviewed by the Election Office.  Of the decisions provided, 60 involved questions of eligibility arising from late payment of dues.  Eighteen of the 60 decisions specifically addressed questions of eligibility arising from late payment of dues by cash dues paying members.[2]  In all of the eligibility cases, the IBT used a fact-based analysis that focused on the specifics of each case.

Although the IBT Constitution describes the dues obligation in absolute terms, it has been interpreted under a rule of reason.  The IBT has held that a member who makes reasonable, affirmative efforts to pay dues in a timely fashion, but whose dues are received late by the local union due to circumstances beyond the member’s control meets the IBT Constitution’s continuous good standing requirement and is eligible to run for office.

The IBT rulings provide guidance on what constitutes compliance with the continuous good standing requirement.  In one case, a member of a local union located in Sacramento, California, mailed his dues early on June 24, 1996, from Sacramento.  The envelope arrived at the local union office on July 1, 1996, with a June 28, 1996, Honolulu, Hawaii, postmark.  The IBT ruled that the member made a reasonable effort to send his dues to the local union before the end of the month and the dues were late due to a postal error that diverted the envelope to Hawaii.  (Ream, August 30, 1996). 

In another case, a cash-paying member gave a dues deduction authorization form to a steward.  The local union failed to properly process the authorization and the member’s dues were paid late because he did not realize the dues had not been deducted from his paycheck until after the end of the month.  The IBT ruled that the late payment did not render the member ineligible to run for election because his submission of the authorization constituted a reasonable

Larry M. McDonald

August 14, 1998

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effort to make a timely payment and the local union’s failure to process the authorization resulted in the untimely payment.  (Gordon, April 10, 1995).  See also, Morrison, October 31, 1997.[3] 

A union member was found to be eligible despite late postings of his dues when he argued he mailed his checks from a nearby post office so that they should have been timely received by the local union.  The member submitted copies of the checks dated several days before the end of the month.  Additionally, the local union admitted that its posting practices were inconsistent and provided no corroboration of when the dues had been received.  (Marchesi, October 8, 1997).

Members have been ruled ineligible based on a break in their continuous good standing when they failed to make any reasonable effort to timely pay dues in the missed period and no circumstances beyond their control hindered their dues payment.  In these IBT rulings, the putative candidate was found to have avoided the obligation to pay dues on time and to have made no real effort to pay.  For example, a member who paid his dues in cash on October 30, instead of October 29, 1993, the last business day of the month, was found ineligible because he had made no effort to pay on or before October 29.  (Mace, September 19, 1995).  In another case, a member stated he had attempted to pay his dues in person on July 28 and 31, 1995, but could not because the local union was closed due to a mechanical problem with the air conditioner.  The member’s argument was discredited when the local union provided telephone records demonstrating that it was open and conducting business during the times in question.  (Johnson, October 17, 1996).  In a case involving cash dues payment by mail, a member asserted that his wife had mailed the payment on September 29, 1997, and argued that the local union should have received the dues either that day or on September 30, the last business day of the month.  The local union had received and posted the dues on October 3, 1997.  The decision

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found that the member’s mailing the dues on September 29, when timely receipt with the union by the last business day would be improbable, was unreasonable.  (Rowe, November 10, 1997).[4]

The Election Officer has adopted the IBT’s own interpretation of the IBT Constitution when they are reasonable.  Leal, P-051-IBT-CSF (October 3, 1995), aff’d, 95 - Elec. App. - 30 (KC) (October 30, 1995) (approving of the Election Officer’s use of the reasonableness standard).  See also, Nelson v. Iron Workers, 600 F. Supp. 16, 21 (D.D.C. 1988) (“[t]he court’s role in suits under Section 101 of the LMRDA is not to interpret the union’s constitution or rules, but to consider whether a union’s interpretation and application of the constitution and rules deprives members of rights guaranteed by Section 101"); Local No. 48, United Bhd. of Carpenters & Joiners v. United Bhd. of Carpenters & Joiners, 920 F. 2d 1047, 1052 (1st Cir. 1990) (“judges should refrain from second guessing labor organizations in respect to plausible interpretations of union constitutions”); Stelling v. Int’l Bhd. of Electrical Workers, 582 F.2d 1379, 1388-89 (9th Cir. 1978), cert. denied, 442 U.S. 944 (1979) (“[c]ourts are reluctant to substitute their judgment for that of union officials in the interpretation of the union’s constitution, and will interfere only where the official’s interpretation is not fair or reasonable,” quoting Vestal v. Hoffa, 451 F.2d 706, 709 (6th Cir. 1971)).

Based upon his review of the cases provided by the legal department, the Election Officer finds the IBT’s application of the reasonableness standard to the constitutional provisions regarding maintenance of good standing by timely payment of dues to be a reasonable and consistent construction of its Constitution.  The Election Officer adopts that standard here.

Larry M. McDonald

August 14, 1998

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4. Findings of Fact Regarding the January 1997 Dues Payment

Local Union 362 contended that Mr. McDonald did not pay his January 1997 dues until February 4, 1997, the date stamped on the back of Mr. McDonald’s check.  Local Union 362 contended that its regular practice is to stamp all the mail on the date received.  Local Union 362 posted Mr. McDonald’s dues on TITAN on February 5, 1997.  Local Union 362 also maintained that it never posts dues checks late unless there is a work overload. 

Mr. McDonald had no specific recollection of mailing his dues check for January 1997.  Mr. McDonald stated that his regular practice was to mail post-dated checks for each month’s dues payment for a full year in December of the previous year or early January, and he had provided documentary support to evidence this practice.  For example, Mr. McDonald provided a memorandum from his secretary dated January 4, 1993, indicating she had mailed his 1993 dues to Local Union 362 that day. 

For 1997 dues, Mr. McDonald produced a date book with an entry on December 5, 1996, stating “mail union dues L.U. 362".  Mr. McDonald also provided a canceled check written to the United States Postal Service (“USPS”) dated December 5, 1996.  Mr. McDonald points to the date book entry and the check to the post office as evidence that he mailed his 1997 dues checks to Local Union 362 on December 5, 1996. 

Mr. McDonald further explained that he was scheduled to travel from late December 1996 through mid-January 1997.  Under the circumstances, Mr. McDonald stated that it would be consistent with his usual practice to have mailed his dues before he began to travel.  Originally a pipeline and construction worker, Mr. McDonald also stated that he took care to pay his dues timely each month because of his status on the Local Union 362 pipeline and construction dispatch boards.[5]  Although Mr. McDonald had worked for the International since 1981, he stated he retained his status on the dispatch boards so if his employment with the IBT ended, he could immediately return to construction work through Local Union 362.  Because members are dropped off of the dispatch boards if they pay their dues late, in order to remain on the dispatch boards, Mr. McDonald had to pay his dues in a timely fashion.  Local Union 362 agrees that Mr. McDonald had remained on the pipeline and construction dispatch boards until he transferred out of Local Union 362.

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August 14, 1998

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In his submission to the Election Appeals Master, Mr. Finley stated that “[e]nvelopes which contain dues for self paying members (sic) are kept if those members are on the pipeline or construction dispatch boards, to verify the date dues were mailed for dispatch purposes only.”  (Letter from Roy Finley to Kenneth Conboy, July 10, 1998.)  According to the Local Union 362 practice, as described to the Election Appeals Master, the local union should have retained the envelope in which Mr. McDonald’s mailed his 1997 dues.  The local union did not, however, keep Mr. McDonald’s envelope.  Had the Local Union followed its stated practice, it would have been able to produce objective evidence of the mailing date in the form of the USPS postmark of the date of mailing.  Without the envelope, however, Mr. McDonald’s assertion of mailing on time, corroborated by his date book and USPS check, provide the evidence of Mr. McDonald’s reasonable efforts to timely pay his dues. 

During the course of the Election Office’s investigation in the initial case and on remand, Local Union 362 offered three different and widely divergent descriptions of its practice of retaining envelopes.  On July 9, 1998, Election Office representatives interviewed Rita St. Mars, the Local Union 362 TITAN operator.  Ms. St. Mars stated that envelopes for all mail received are retained and stapled to the contents.  Upon a request by the Election Office, Ms. St. Mars searched for, and stated she was unable to find, the envelope in which Mr. McDonald enclosed his 1997 dues checks.  On July 10, 1998, in a conversation with Ms. St. Mars and Mr. Finley, Ms. St. Mars changed the statement she had made the preceding day, and stated that the local union only kept the envelopes for pipeline and construction workers -- the explanation Mr. Finley provided to the Election Appeals master in the July 10 letter.  Yet, on August 10, 1998, in a conversation with an Election Officer representative, Mr. Finley changed the position as previously stated to the Election Appeals Master.  Mr. Finley’s latest statement was that the local union selectively retains envelopes for members on the pipeline or construction boards, such as when member dues are received more than 15 days late, because a late dues payment results in removal from the dispatch boards.

Although Mr. Finley’s account of Local Union 362's practice changed, the significance of his account for Mr. McDonald’s eligibility is the same.  It is undisputed that Mr. McDonald was on the pipeline and construction boards dispatch boards and that Local Union 362 did not retain the post-marked envelope enclosing his dues that would have proved the mailing date.  The absence of the envelope, under circumstances where the union’s regular practice required keeping the envelope at least as necessary to establish an irregular, late payment, deprives Local Union 362 of any evidence that addresses when Mr. McDonald mailed in his check.  Mr. McDonald’s testimony and documents concerning the date of mailing and Local Union 362's inability to controvert that particular fact supports an inference that Mr. McDonald mailed his 1997 dues sufficiently in advance to be received on time.

Regarding the timeliness of posting, Mr. McDonald presented evidence that the local union had not always posted dues in a timely manner.  In 1993, Mr. McDonald’s secretary mailed his dues for the year from Edmonton, Alberta, to Calgary, Alberta, on January 4, 1993, yet the local union posted the dues on February 3, 1993.  The mailing on January 4, 1993, allowed for more than ample time for the dues to be received and posted in a timely manner.  In 1993, the local union posted Mr. McDonald’s dues late for six months out of the year when they had all of the post-dated checks in January.  In 1994, Local Union 362 posted Mr. McDonald’s dues late in five separate months, again, despite the fact the local union had all of the post-dated checks in the beginning of the year.  In 1996 and 1997, the local union posted Mr. McDonald’s dues late in March of each year when local union was in possession of post-dated checks for the month.  Thus, Mr. McDonald submitted evidence to support an inference that even dues paid on time would not always be posted promptly. 

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August 14, 1998

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Finally, Mr. McDonald also presented evidence of complaints by other members of Local Union 362.  On January 10, 1997, Attorney Betty Grdina in the IBT Legal Department noted in a letter to Ron Douglas, Executive Assistant for Teamsters Canada, that members in one of Local Union 362's shops had complained about the local union’s collection and posting of dues.  Mr. McDonald submitted documentation about one member who was improperly removed from the pipeline and construction boards and suspended after a money order for his dues was lost and the local union failed to process a replacement check for the dues.  That member was returned to the dispatch boards after appealing his suspension to the Joint Council.

Based on the totality of the evidence, the Election Officer finds that Mr. McDonald made a reasonable effort to pay his dues in a timely fashion in January 1997.  Mr. McDonald had a consistent practice of paying his dues well before the end of the first month in each year.  The evidence he presented, including his testimony, the date book, and his USPS check supports his claim that he continued this practice in late 1996.  Based on Mr. McDonald’s evidence of payment, along with the evidence of the inconsistencies in Local Union 362's practices and the varying explanations of the local union, the Election Officer finds that the local union received the dues on time but stamped and posted the dues late.

5. The Dues Gap in April and May 1997

In March 1997, Mr. McDonald decided to transfer voluntarily from Local Union 362 to Local Union 424.  He sent a letter on March 31, 1997, to Local Union 424 stating his desire to transfer and requesting the local union to contact him regarding transfer procedure.  That same month, he sent a letter to Local Union 362 resigning from one of their committees, but did not officially notify them of his plan to transfer.  There is no dispute that Mr. McDonald paid dues to Local Union 362 through March 1997.

Mr. McDonald did not pay his dues to either Local Union 424 or 362 in April or May 1997.  He stated that, during those two months, he was trying to find out from Local Union 424 what his dues rate would be and could not send in his dues because he had no idea how much to send.  Mr. McDonald stated that he called Local Union 424 several times during April and May 1997, in an attempt to discover his dues rate, but that he received no information.  Local Union 424 has no record of Mr. McDonald’s calls and the local union secretary has no recollection of speaking with Mr. McDonald during that period. 

Local Union 424 admitted that they did not process Mr. McDonald’s request to transfer in a timely fashion.  John Foley, the Secretary - Treasurer of Local Union 424, stated that he was on vacation in Florida until approximately April 18, 1997, and that, in his absence, Mr. McDonald’s transfer “fell through the cracks”.  The local union also admitted that, as a small local union, they did not know how to effectuate a transfer, causing additional delays in processing Mr. McDonald’s transfer.

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August 14, 1998

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Mr. Hoffa asserted that Mr. McDonald’s failure to pay dues in a timely fashion in April and May 1997, destroys the continuous good standing status required to run in the election.  Mr. Hoffa argued that Mr. McDonald did not correctly follow the transfer procedures in the IBT Constitution in order to effectuate the transfer and that, during the period in question, Mr. McDonald remained obligated to pay dues to Local Union 362.  Mr. Hoffa also argued that Mr. McDonald’s involvement in the transfer procedures did not absolve him from his responsibility for timely payment of dues.  Mr. Hoffa urged the Election Appeals Master to adopt a strict interpretation of the Rules and IBT Constitution and find that this dues gap causes a break in continuous good standing.  He contended that Election Officer precedent requires this interpretation. 

First, the cases cited by Mr. Hoffa as requiring a strict rule here are inapposite.  In In re Jackson, E-004-LU385-EOH (September 27, 1995) aff’d, 96 - Elec. App. - 50 (KC) (January 3, 1996), the Election Officer found Leslie Jackson, a candidate for convention delegate, ineligible because two of his dues payments in the prior twenty-four month period were posted late.  In a hearing on October 10, 1995, before the Election Appeals Master, Mr. Jackson was given a continuance so that he could gather and present evidence to support his argument on appeal that he delivered his dues to the local union in a timely fashion.  By December 13, 1995, Mr. Jackson had failed to submit any such evidence to the Election Officer.  The Election Appeals Master therefore found that, lacking any evidence to support Mr. Jackson’s contention that he made reasonable efforts to timely pay his dues, Mr. Jackson was ineligible.

In the IBT ruling in Hennessy (August 21, 1992), (denial of reconsideration, September 28, 1992), Stan Hennessy, a member of Local Union 31, was found ineligible to run for local union office because Mr. Hennessy’s dues were posted late in one month.  Mr. Hennessy explained that he had tried to pay his dues at an Executive Board meeting, but was told that he could not pay his dues because the computer system was not working.  He thereafter stated that he would pay his dues at the next Executive Board meeting.  He did so, but the Executive Board meeting was after the last business day of the moth.  The General President found that Mr. Hennessy’s payment of dues at the Executive Board meetings did not evidence a reasonable effort to pay dues on a timely basis.  In his appeal, Mr. Hennessy did not argue that he made reasonable efforts to timely pay dues, but that the requirement that he timely pay his dues for the preceding twenty-four months should be waived, which the IBT does not do.  Mr. Hennessy made no attempt to justify his ultimately late dues payment and the evidence would not support such a finding. 

After remand, the Election Office interviewed Mr. McDonald about the dues gap for April and May, 1997.  Mr. McDonald recounted that he had sent a letter to Local 424 on March 31, 1997, requesting a transfer and asking for a reply on its status from Local Union 424.  He stated he expected that the transfer would be executed quickly and that he would hear from Local Union 424 in plenty of time to send in his dues.  He reiterated his assertion that when he had not heard from the local union, he began calling Local Union 424 in mid-April 1997, leaving messages for both Mr. Phelan, the president of Local Union 424, and Mr. Foley, but that he received no return calls. 

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Mr. McDonald stated that he had no idea what his dues for Local Union 424 were.  As a chemical workers’ local union, instead of a general union like Local Union 362, he expected the dues structure to be different.  He stated he did not just send a dues payment without notice from the local union because he did not want to send an insufficient amount of dues.  He continued to leave messages with the local union, but his calls were not returned.  He stated that in June 1997 he became concerned about being suspended for non-payment of dues, and therefore sent in dues at the monthly rate he had paid to Local Union 362. 

Mr. McDonald continued to aver that his letter requesting transfer to Local Union 424 put that local in a position where it had to provide requested information to transferees such as himself.  He stated he was never a local union officer and was not familiar with the transfer process, but that he understood the IBT Constitution controlled the procedures.  He stated he knew he did not have an obligation to pay dues to Local Union 362 once he requested the transfer from Local Union 424 and that he felt like he was “in limbo” because he understood that he should be getting information on his dues obligation from Local Union 424 and no information was forthcoming.  In this case, Mr. McDonald made reasonable efforts to pay dues on time to the transferee local and followed appropriate procedures to have the transfer implemented promptly.

The procedure for the issuance of a transfer card is set forth in the IBT Constitution, Article XVIII, Section 2(a).  It states,

[a]ny member in good standing is entitled to obtain a transfer card from the Local Union in which he is a member in order to become a member of the Local Union within whose jurisdiction he is employed.  Every member must report to the Local Union into which transfer is sought upon obtaining employment and must present to the Local Union proper and satisfactory identification.

The Secretary-Treasurer of the Local Union into which transfer is sought shall certify to the Secretary-Treasurer of the Local Union from which the member seeks to transfer that the member has obtained work, or upon issuance of a transfer card will be eligible for work, within that Local’s jurisdiction.  Upon receipt of such certification, the Secretary-Treasurer of the Local Union from which the transfer is being requested must respond in writing as to the member’s status in the Local Union from which transfer is sought.  No transfer card shall be issued unless such certification and corresponding response have been issued in writing by the Secretary-Treasurer of the affected Local Union.

Mr. McDonald correctly followed the procedure to initiate his transfer.  In order to obtain the transfer, he first reported to the local union into which he sought to transfer, Local Union 424.  Local Union 424 then had the responsibility to contact Local Union 362 to certify that, upon issuance of a transfer card, Mr. McDonald would have been eligible to work within that local union’s jurisdiction.  Local Union 424 admitted it failed to fulfill its responsibility in a timely manner at that juncture.

Larry M. McDonald

August 14, 1998

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Under the IBT Constitution,

[a] member in good standing who requests a transfer card shall not be responsible for payment of dues or assessments which accrue in the Local Union from which transfer is requested after the month in which application for transfer is made.  Thereafter, a member becomes obligated to the Local Union into which transfer is requested.

Article XVIII, Section 2(d).  Therefore, the obligation to pay dues to the local union into which transfer is sought begins not when the transfer is effectuated,[6] but in the month after the member initially requests the transfer from the local union into which transfer is sought. 

Mr. McDonald submitted his request to transfer to Local Union 424 in March 1997.  He had paid his dues to Local Union 362 for the months of January, February, and March 1997.  Had the transfer been resolved promptly, Mr. McDonald would have likely paid his dues to Local Union 424 on time.  It was Local Union 424's silence and inability to move on the transfer that frustrated Mr. McDonald’s timely dues payment in April and May, 1997.

The Election Officer has already decided that the provisions regarding the payment of dues will be read using a reasonableness standard, not the strict interpretation urged by Mr. Hoffa.  Mr. McDonald made reasonable efforts to effectuate his transfer and pay dues to Local Union 424.  He transmitted a request to Local Union 424 to initiate a transfer and submitted evidence indicating that Local Union 424 received the transmission.  Thereafter, Local Union 424 bore the responsibility to take action to process Mr. McDonald’s request, a responsibility they admittedly neglected.  Accordingly, Mr. McDonald’s late payment of dues in April and May 1997 does not destroy his continuous good standing and make him ineligible to run for International office.

Accordingly, the protest on remand is GRANTED.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within one (1) 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:

Larry M. McDonald

August 14, 1998

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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, 444 North Capitol Street, NW, Suite 445, Washington, DC  20001, Facsimile (202) 624-3525.  A copy of the protest must accompany the request for a hearing.

Sincerely,

Michael G. Cherkasky

Election Officer

MGC:chh

cc:              Kenneth Conboy, Election Appeals Master

Larry M. McDonald

August 14, 1998

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