IN RE: ELIGIBILITY OF TIMOTHY McKay, Local Union 804
Protest Decision 2011 ESD 65
Issued: January 8, 2011
OES Case No. E-007-123010-NE
Timothy McKay, member of Local Union 804, timely 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 McKay was not eligible for nomination as delegate because he suffered a break in the required 24 consecutive months of good standing.
Election Supervisor representative Kathryn A. Naylor investigated this protest.
Findings of Fact and Analysis
McKay's TITAN record shows he is on check-off with his employer, UPS, and that his dues for December 2009 through April 2010 were not timely paid. McKay told our investigator that he stopped working in September 2009 and was in the hospital in October 2009 because of a serious health condition. He returned to work July 1, 2010. According to McKay, he received disability payments while he was not working. In addition, he believed he received vacation, sick and holiday pay at various times during his disability and convalescence. However, it is not disputed that he received no earnings in February, March, May and June, 2010. On May 12, 2010, McKay made a cash payment to Local Union 804 to satisfy the monthly arrearages for December 2009 through May 2010.
To be eligible to stand for delegate or alternate delegate to the IBT International Convention under Article VI, Section 1(a) of the Rules, a member must: (1) be in continuous good standing with his/her local union, with his/her 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 to the month of nomination; and (3) be eligible to hold office if elected. Pursuant to Article X, Section 5(c) of the IBT Constitution, all cash-dues paying members are responsible for paying their dues on or before the last business day of each month within the 24-month period in order to retain good standing status for the purpose of running for delegate, alternate delegate or local union office.
At issue in this matter are McKay's untimely payment of dues for February and March 2010, when he was not working, received no leave time benefits such as vacation, sick or holiday pay, and did not make timely cash dues payments. 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). This rule would operate to protect McKay's continuous good standing for December 2009 and January 2010, when he claims to have received holiday pay in sufficient amount from which dues could be deducted. However, where the member had insufficient earnings in a month from which dues could be deducted, he cannot rely on the check-off authorization and instead must make timely cash payment of dues in order to retain his continuous good standing for that month. McKay had no earnings in February or March 2010 from which dues could be deducted, and his payment of those dues in May was untimely, interrupting his continuous good standing and rendering him ineligible.
McKay first contends that he should be deemed eligible because he was excused from timely payment of dues by officers of Local Union 804 in late 2009. He said he spoke with them about the need to pay his dues when he fell ill and was told "not to worry about it." McKay also stated that, after the change in local union administration on January 1, 2010, the new officers told him the same thing. McKay thought this meant that he could pay his back dues when he able at a later time and that he would remain in good standing. McKay would not identify the officers he spoke with as he "did not want to get anyone in trouble." Statements of union officials, if made, do not suspend or excuse a member's obligation to make timely cash dues payments where he has insufficient earnings from which his dues may be deducted and remitted through check-off. Accordingly, we reject McKay's assertion that he was excused from timely payment of dues by these statements.
McKay next contends that dues deductions should have been made from his disability payments since these payments were made by a company that has an agreement with the employer. Precedent establishes, however, that disability payments are not earnings subject to the check-off rule. Eligibility of Uhrynchuk, et al, 2001 EAD 151 (February 8, 2001), aff'd 01 EAM 38 (February 26, 2001) (member was ineligible where he was out on a disability claim and had no income from which dues could have been deducted during the period August through November 1999 even though the member paid the back dues later in November 1999). McKay's disability benefits were not paid by his employer, whom he had authorized to check off and remit dues; instead, they were paid by a third-party insurance carrier that was not authorized to deduct and remit dues to the local union. That the insurance carrier could have been directed by the employer, the union, and/or McKay to remit dues is irrelevant, as no such direction was given the carrier.
Finally, McKay contends he received no notice from the local union that his dues were in arrearage, a notice he says is required by Article X, Section 5(c) of the IBT Constitution. That provision directs a local union to notify a member that no dues were received through check-off for the member. Accepting McKay's claim as true that he received no such notice is of no help to his claim of eligibility. The notice contemplated by the constitutional provision is sent after the month in which no dues are received has passed. As McKay had no earnings from which dues could have been deducted in February 2010, as an example, he was required to remit cash dues to the local union on or before the last business day of that month. The Article X, Section 5(c) notice would not be sent until March, at the earliest, too late to cure the February dues delinquency so as to retain McKay's continuous good standing.
Accordingly, we DENY the protest and find McKay INELIGIBLE to be nominated for delegate or alternate delegate to the 2011 IBT Convention.
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 65
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
Timothy McKay
638 VanNest Avenue
Bronx, NY 10460
Timothy Sylvester, President
Teamsters Local Union 804
34-21 Review Avenue
Long Island City, NY 11101
Via Fax 718 786-5757
David F. Reilly
Northeast Regional Director
22 West Main Street
Wickford, RI 02852
dreilly@dfresq.com
Art Wasserman
Northeast Adjunct
107 University Place
Apartment 3F
New York, NY 10003
aawasserman@aol.com
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