IN RE: ELIGIBILITY OF JAKWAN RIVERS, Local Union 237.
, 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.
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.
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.
received no pay for the August 8 - 21 period; no dues were deducted or remitted for him for this period.
regular pay for the August 22 - September 4 period, but no dues were deducted or remitted.
received no pay for the September 5 - 18 or September 19 - October 2 periods and no dues were deducted or remitted on his
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
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.
also claimed that the charges were an attempt to disqualify him in the upcoming delegate elections.
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.
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.
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.
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.
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.
Accordingly, we examine whether Rivers
as a check-off member had sufficient earnings in each month to fund his
The evidence demonstrates that Rivers
regular pay in pay periods that touched on or fell completely within each of the four months at issue in this matter.
received full pay for all of July.
Excepting the August 8 - 21 pay period, he
regular compensation for August.
In September, he
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
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.
denied receiving the notice.
remitted dues on September 15 covering 4 bi-weekly pay periods, bringing him current in his
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
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.
satisfied the arrearage on November 17.
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.
9810 Avenue K, Apt. 2
Brooklyn, NY 11236
stated that he
moved on October 1, 2010, from a residence in Wyandanch to his
current address in Brooklyn and filed a change of address with the post office.
acknowledged receiving other correspondence from the union (its newspaper and a letter on benefits are examples) that were sent to him at his
former address and were forwarded to the Brooklyn address, but denied receiving the #99 or #89 notices.