Protest Decisions

IN RE: ELIGIBILITY OF JAKWAN RIVERS, Local Union 237.
Protest Decision 2011 ESD 64
Issued: January 6, 2011
OES Case No. E-006-120710-NE

Jakwan Rivers, member and shop steward of Local Union 237, filed an eligibility protest pursuant to Article XIII, Section 2(b) of the Rules for the 2010-2011 IBT International Union Delegate and Officer Election ("Rules"). The protest contested the preliminary determination by our office that Rivers was not eligible for nomination as delegate because he suffered a break in the required 24 consecutive months of good standing.

Election Supervisor representatives Maria Ho and Kathryn Naylor investigated this protest.

Findings of Facts and Analysis

Local Union 237, the IBT's largest local union, maintains its own dues accounting system and is not on TITAN. All members of the local union are employed by the City of New York and are on check-off. Check-off and membership standing is assessed on a per pay period basis, instead of the monthly basis more typically used in other local unions. Generally, if a member of Local Union 237 has pay or earnings in a given pay period, the city deducts and remits dues from that pay. The amount of dues deducted for an employee on a bi-weekly pay schedule is not the member's monthly dues obligation; instead, it is 1/26^th of the annual dues obligation, and the amount deducted and remitted is uniform from one pay period to the next.

With each dues remittance from the city, the local union also receives the names of all employees for whom dues are remitted and the amount of each member's dues. When a check-off deduction is not made for any reason from a given member, the local union generates and mails the member a notice, designated by the local union as a "#99" notice, stating that dues were not remitted for that pay period and informing the member to pay the dues "in order to remain a member in good standing" with the local union. The #99 notice does not indicate the amount to be paid or the deadline for submitting payment.

Under Article VI, Section 1(a) of the Rules for the 2011 IBT Election, "[t]o 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; (2) Be employed at the craft within the jurisdiction of the Local Union for a period of twenty-four (24) consecutive months prior the month of nomination; and (3) Be eligible to hold office if elected."

Local Union 237's nominations meeting for the delegates and alternate delegates election is in January 2011. Therefore, the 24 month period during which candidates must be in continuous good standing in order to be eligible for nomination runs from January 2009 through December 2010. 

Review of protestor Rivers' dues record shows that his dues were timely paid by check-off for the first 18 months of the eligibility period, from January 2009 through June 2010. Our investigation focuses on the remaining months of the period.

Rivers was injured on July 16, 2010 and did not resume work until mid-October. The July 16 injury fell in the middle of the July 11 - 24 pay period, Rivers had sufficient earnings in that period to fund his bi-weekly dues obligation, and check-off was made.

Rivers received his regular pay for the July 25 - August 7 bi-weekly period; inexplicably, no check-off was made. When the local union received the dues remittance from the city and Rivers' name did not appear on it, the local union states that it mailed Rivers a #99 notice advising that no dues were received and instructing him to remit dues. The local union did not retain a copy of the letter it claims to have sent Rivers, and Rivers denied receiving it.

Rivers received no pay for the August 8 - 21 period; no dues were deducted or remitted for him for this period. Rivers received his regular pay for the August 22 - September 4 period, but no dues were deducted or remitted. He received no pay for the September 5 - 18 or September 19 - October 2 periods and no dues were deducted or remitted on his behalf. He returned to work during the next period, on October 13, had sufficient earnings to fund his bi-weekly dues obligation, and dues were deducted and remitted on his behalf.

Rivers' bi-weekly dues rate is $27.14. Although he denies receiving the #99 notice from the local union, Rivers remitted $108.56 to the local union on September 15. The local union posted that amount to its dues accounting system on September 21. This payment satisfied Rivers' dues obligation for the 4 bi-weekly periods for which dues had not been remitted: July 25 - August 7, August 8 - 21, August 22 - September 4, and September 5 - 18.

When the local received no dues for Rivers for the September 19 - October 2 period, it claims that it sent him a second notice, a #89 notice, advising of the delinquency. As with the #99 notice, the second notice did not state the date by which dues were required to be remitted; however it did specify the amount of the dues arrearage. The local union did not retain a copy of the #89 notice it claims to have sent to Rivers, and Rivers again denied receiving it. [1]

Meanwhile, the local union notified Rivers by letter dated October 8 of a November 1 hearing on assault charges filed against Rivers by another member. Rivers received this letter and replied on October 26, denying all charges and claiming they were filed to retaliate against him and to intimidate him because he ran against the current local union executive board in the 2009 local union officer elections. Rivers also claimed that the charges were an attempt to disqualify him in the upcoming delegate elections. Lastly, Rivers stated that he would be unavailable for the hearing on November 1 since he had surgery scheduled for that day.

The local union responded by letter dated November 3, sent to Rivers' Brooklyn address via express mail, granting Rivers' request to postpone the hearing until November 29 and stating that he was $27.14 in arrears as of the date of the November 3 letter. Rivers responded to the notice of dues arrearage on November 17 by sending the local union a check for $54.28, twice the amount of the stated arrearage. Rivers sent this amount because he had surgery on November 1, expected to be off work until November 28, and knew he would have no earnings or check-off deduction for the November 14 - 27 pay period. The local union received the payment on November 19, posted $27.14 to Rivers' dues account and issued a refund of the remaining $27.14 as overpayment because its dues accounting personnel were unaware that Rivers would have no dues remittance in the November 14 - 27 pay period. The refund was sent to Rivers' former address in Wyandanch, not the Brooklyn address, and the post office eventually returned it to the local union. On December 15, the local union wrote Rivers explaining that the refund check had been returned and directing him to contact the local union to arrange for receipt of it. Rivers received this letter and stated that he wished to apply the check to the outstanding dues of $27.14 for the November 14 - 27 pay period.

In analyzing these facts, we start with the firmly established principle that a member on dues check-off retains his good standing even if his dues were remitted late or not at all by the employer, provided he had signed a check-off authorization and had sufficient earnings or paid leave in the month from which dues could have been deducted. IBT Constitution, Article X, Section 5(c); Dunn, E9 (October 31, 1995); Eligibility of John Gerow, et al., 2006 ESD 121 (March 2, 2006); Eligibility of Thiel, 2010 ESD 16 (July 26, 2010), appeal withdrawn, 10 EAM 4 (August 6, 2010). Rivers was on check-off and was entitled to rely on the check-off authorization directing the employer to remit dues from his pay in a timely manner.

As the IBT Constitution makes plain, the check-off rule for eligibility is accorded to any member on check-off "whose employer fails to make a proper deduction during any month in which the member has earnings …" (emphasis supplied). Applying this provision, we look to whether the member had net earnings on any day during the month sufficient to fund his total monthly dues obligation. This examination has led us to find a member eligible where his only earnings for a given month was from holiday pay on a single day. Eligibility of Hicks, 2005 ESD 30 (December 5, 2005).

Local Union 237 employs a bi-weekly dues deduction and remittance system. The use of this system does not alter the basic rule that a member on check-off who had sufficient pay on any day in the month to fund his monthly dues obligation may rely on that check-off to retain his eligibility. Accordingly, we examine whether Rivers as a check-off member had sufficient earnings in each month to fund his dues.

The evidence demonstrates that Rivers received his regular pay in pay periods that touched on or fell completely within each of the four months at issue in this matter. Thus, he received full pay for all of July. Excepting the August 8 - 21 pay period, he received his regular compensation for August. In September, he received his regular pay during September 1 through 4, an amount sufficient to fund his dues obligation for September. In October, he returned from his July injury on October 13 and had sufficient earnings in the balance of the month to fund his October dues requirement. In November, he was in an active work status beginning November 28 and had sufficient earnings in the last days of the month to fund his November dues payment. Accordingly, the check-off authorization Rivers executed gave him the protection accorded by the IBT Constitution to preserve his eligibility.

Of course, that constitutional protection did not excuse Rivers from paying the required dues once the local union gave notice that the dues were delinquent. The local union asserts that it gave such notice by mail on August 10. The notice did not advise Rivers of the amount due or the deadline for submitting it. Rivers denied receiving the notice. Nonetheless, he remitted dues on September 15 covering 4 bi-weekly pay periods, bringing him current in his dues. Under Article X, Section 5(c) of the IBT Constitution, "where the Local Union notifies the member of his employer's failure to make check-off deductions, then payment must be made by the member within thirty (30) days of said notice in order to retain good standing status." On the disputed issue of whether the notice was sent and received, we find insufficient evidence to establish that Rivers was placed on notice of his delinquency. Accordingly, we will not apply the 30 day time limit to disqualify him from eligibility.

With respect to the dues arrearage he suffered for the September 18 - October 2 period, receipt of notice of the arrearage again is disputed. It is not disputed that Rivers received the local union's November 3 letter advising of the arrearage, among other things. Rivers satisfied the arrearage on November 17. Given the lack of proof that the earlier notice was sent and received, and proof that the payment was received within 2 weeks of the November 3 notice, we will not apply the 30 day payment rule to disqualify Rivers.

In the same November 17 check in which he paid the delinquent September dues, Rivers also paid the dues for the November 14 - 27 period, anticipating that he would not receive any pay in that period from which the employer could deduct and remit dues. That the local union sought to refund those dues will not serve to render him delinquent for that period. Eligibility of Asskaryar, 2006 ESD 53 (January 25, 2006).

Accordingly, we find that Rivers has maintained his good standing with the local union continuously for the 24 month eligibility period and is ELIGIBLE to be nominated for delegate or alternate delegate.

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, 1801 K Street, N.W., Suite 421 L, Washington, D.C. 20006, 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
        2011 ESD 64

DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):

Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
braymond@teamster.org

David J. Hoffa
1100 Connecticut Avenue, N.W., Ste. 730
Washington, D.C. 20036
hoffadav@hotmail.com

Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210-0128
ken@tdu.org

Barbara Harvey
1394 E. Jefferson Avenue
Detroit, MI 48207
blmharvey@sbcglobal.net

Fred Gegare
P.O. Box 9663
Green Bay, WI 54308-9663
kirchmanb@yahoo.com

Scott D. Soldon
Previant Goldberg
1555 North River Center Drive, Ste. 202
P.O. Box 12993
Milwaukee, WI 53212
sds@previant.com

Fred Zuckerman, President
Teamsters Local Union 89
3813 Taylor Blvd.
Louisville, KY 40215
fredzuckerman@aol.com

Robert M. Colone, Esq.
P.O. Box 272
Sellersburg, IN 47172-0272
rmcolone@hotmail.com

Carl Biers
Box 424, 315 Flatbush Avenue
Brooklyn, NY 11217
info@SandyPope2011.org

Julian Gonzalez
Lewis, Clifton & Nikolaidis, P.C.
350 Seventh Avenue, Suite 1800
New York, NY 10001-5013
jgonzalez@lcnlaw.com

Jakwan Rivers
9810 Avenue K, Apt. 2
Brooklyn, NY 11236
jakwanr@optonline.net

Ruben Torres, Secretary-Treasurer
Teamsters Local Union 237
216 West 14th Street
New York, NY 10011
rtorres@local237.org

Susan Davis, Esq.
Cohen, Weiss and Simon LLP
330 West 42nd Street
New York, NY 10036
sdavis@cwsny.com

David Reilly
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com

Maria Ho
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
mho@ibtvote.org

Kathryn Naylor
Office of the Election Supervisor
1801 K Street, N.W.
Washington, D.C. 20006
knaylor@ibtvote.org

Jeffrey J. Ellison
214 S. Main Street, Ste. 210
Ann Arbor, MI 48104
EllisonEsq@aol.com