$241, none of the Local's records actually indicate a late payment by Hawkins. There was no notation of a late fee in any of Local 2's records.

11. Local 2 has been under Trusteeship and it is an acknowledged fact that Local 2's records are in disarray.

12. Acknowledging that there have been problems with Local 2's record keeping, Qundel's ruling stated that "[w]here a member's statement as to when dues were paid conflicted with those [Local 2's] records, l have given the members the opportunity to present me with documentation to support their statements as to the time of payment. If a member has been unable to provide me with some documentary evidence showing the time or existence of a disputed payment, I have 'based my determination of eligibility on the records."

13. Quindel examined the records at Local 2's office and found the following:

3

14. Hawkins points to several indicia demonstrating that he had not failed to pay his dues on time in 2000:

•  Local 2's records are known to be in bad condition and Local 2 has a problem with bad record-keeping.

• Local 2's records not only do not show a late payment of dues, they do not indicate any payment of dues. 

• Local 2's records do not indicate any reference to a late payment of dues.

• Hawkins was never informed he was not in good standing. 

• Hawkins was actively working with Business Agents regarding problems with contractors therefore the Business Agents would have informed him of any standing problems 

• Hawkins qualified and purchased the union jacket indicating he had timely paid his dues for a full year. 

• In January 20001, Hawkins requested a review from the International Union of the status of his records. The response he received indicated that he had been suspended in 1998 and received a new 1998 initiation date as a result, but had no further entries since that date to indicate any standing problems in 2000.

• Hawkins attended the March, April, and May 200 membership meetings which only members in good standing were permitted to attend.

• The IHO will address all these indicia.

 15. First, the IHO begins with the fact that Local 2's records are known to be in disarray. While Quindel's ruling regarding reliance on records actually made is proper, the IHO distinguishes situations where there is no record made by Local 2.

16. Local 2 does not make a notation when members have failed to pay. Local 2 makes no entries stating that a member has not paid for any given period. Therefore, an absence of any notation of payment in Local 2's records can mean one of two things, either there was payment made for which a receipt was issued but no corresponding entry made in the dues ledger, or the member did not pay.

 

4

17. If Local 2's records could show a late payment, and Hawkins was in some way notified of that, then the IHO may have been more inclined to support Quindel's ruling. However, as noted by Hawkins, Local 2 has no record that Hawkins made any payment for January/February/March 2000. Not only is there no entry stating that Hawkins made a late payment, there is no indication of any payment. Yet when Hawkins paid for the rest of the year, he was given credit through December. Had Hawkins not paid January/February/March, his bulk payment of $241 would have first been applied to any arrearage, therefore he would be short for October/November/December 2000. However, the receipt issued by Local 2 to Hawkins on May 31, 2000, indicates that be was paid through and including the end of December 2000.

18. The best conclusion that can be drawn from this is that Hawkins had at some time paid for January/February/March 2000 prior to his payment on May 31, 2000, for the rest of the year. The question is when that payment was made, on time or late. The burden is on Local 2 to prove that the payment had been made late. Local 2 cannot find any record of the payment let alone of the payment's lateness.

19. The other indicia offered by Hawkins further support the finding that he had made a payment on time. Hawkins stated that he was given the voucher to claim his jacket without any questions. The point of the jacket purchasing program was to induce members to pay on time and therefore qualify for a jacket. If Hawkins had not paid on time, he would not have qualified for a jacket symbolizing a year's worth of timely payments.

20. Hawkins also demonstrated other rights he enjoyed as a result of being a member in good standing. Article VIII, Section 7 of the Uniform Local Union Constitution (Constitution) provides that "persons in arrears have no right to attend meetings nor any other rights except the

 

5

right to be readmitted., . ." Hawkins was able to attend membership meetings without being questioned as to his standing. Hawkins continued receiving the membership magazine from the International Union which is only sent to members in good standing. Hawkins continued to work at the calling and had ongoing dialogue with Business Agents regarding contractors who were allegedly violating welfare and pension benefits.

21. Finally, Hawkins requested a review of the International Union's records regarding his standing. Randy Dalton, the Trustee of Local 2 sent Hawkins a letter on January 29, 2001, indicating that Hawkins had been suspended in 1998 for failure to pay dues and therefore his initiation date of September 1998 was as of the date he had made appropriate payments and been reinstated. The Constitution provides that "[i]f a member becomes suspended for any reason of his own conduct, he can only be readmitted through the Local Union of which he was a member when suspended. Readmitted members shall be considered new members from the date of their readmission." Article VIII, Section 7. Hawkins correctly points out 'that if he had been suspended in 2000, the letter should have so indicated and his initiation date would have been changed to reflect a time in 2000.

22. Until he was being examined as a candidate for office, Hawkins had not been informed by any LIUNA entity that he should have been suspended in 2000.

23. Local 2 has no record of Hawkins making a late payment. It simply has a payment of an extra $25 which corresponds to the amount charged for late fees, without any notation of a lateness. That fact, when weighed against the indicia offered by Hawkins, fails to meet Local 2's burden of showing Hawkins was not in good standing due to failure to pay dues on time.

 

6

DISCUSSION

. . . The Constitution requires a candidate to have been in good standing for a period of two years immediately prior to nominations. If a candidate was not actually suspended from membership during that period, the Judges of Election do not have the authority retroactively to determine that he could or should have been suspended . . . [R]etroactive challenges to a candidate's prior good standing should not be permitted.

Quindel's ruling misplaces the burden. The burden to show that Hawkins was late and suspended is on Local 2, not the member. Local 2 was unable to demonstrate that Hawkins had made a late payment and had been suspended.

  CONCLUSIONS

 

1. Local 2 has failed to prove that Haw has paid his dues late in 2000.

2. The surrounding circumstances indicate that Hawkins paid his dues on time and was in good standing for the Year 2000

7

3. It is the policy of LIUNA that the Judges of Election (in this case the Election Officer) cannot determine retroactively that a member should have been suspended at a prior time for failure to pay dues,

4. Hawkins is qualified to run for office.

DECISION

The protest of Hawkins is GRANTED. Hawkins shall have his named placed on the ballot for the positions of President and Delegate District Council.