IN RE: RICK LEE,
Protest Decision 2000 EAD 31
Issued: October 2, 2000
OEA Case No. PR091801WE
See also Election Appeals Master decision 00 EAM 10 (KC)
Rick Lee, a member of Local Union 760, filed a timely pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). He challenges the nominations of nine candidates for delegate to the International Convention, namely, Ron Boles, Gary Wilcox, Abel Madrigal, Robert Knode, Iona Parker, Patricia Brown, Charlie Tompkins, Betty Jenne, and Scott Telander, also members of Local Union 760. He claims that the nominations are invalid because they are based on written submissions which did not comply with the requirements for written nominations or seconds described in Article II, Section 5(f) of the Rules. Additionally, he claims that the nominations of Mr. Madrigal and Ms. Brown are invalid because these candidates were ineligible to run as delegates under Article VI, Section 1(a)(1) of the Rules. He further claims that the nomination of Mr. Telander is invalid because the member who he intended to be his seconder, Ms. Brown, was ineligible to second his nomination under Article II, Section 5(h) of the Rules.
Election Administrator representatives Christine Mrak and Lois M. Tuttle investigated the protest.
I. Compliance with Requirements for Written Nominations
Findings of Fact
In July 2000, Local Union 760 posted its Local Union Plan Summary at all its bulletin boards, informing its members of the nomination meeting for delegates and alternate delegates to take place on Thursday, September 14, 2000 in Yakima, Washington. In August 2000, the local posted on all its bulletin boards and mailed to all of its active members of a nomination meeting notice. The Local Union Plan Summary and the nomination meeting notice described the eligibility qualifications for candidates and nominators. They also described the methods by which a nominator or seconder could in lieu of attending the meeting submit a written nomination or second on behalf of a candidate at least one day prior to the day of the meeting; and by which a candidate could, in lieu of attending the meeting, submit a written acceptance through another member at the meeting.
On July 29, 2000 Ms. Jenne, a shop steward for Local Union 760 workers at Welch Foods in Kennewick, Washington, attended an Election Administrator's Election Rules Training Meeting held in Seattle, Washington. During the meeting, two Election Administrator representatives, Maureen Geraghty and Christine Mrak, explained the Rules relevant to elections for delegates to the International Convention and provided copies of the Rules to attendees at a table at the back of the room. Ms. Jenne states that she did not obtain a copy of the Rules at the meeting because the Election Administrator representatives ran out of them. While it is unclear whether or not Ms. Jenne actually obtained a copy of the Rules at the meeting, neither Election Administrator representative remembers that she or any other member pointed out a shortage to them at the meeting. Moreover, the Election Administrator representatives remember explaining at the meeting that additional copies were available to any members who wanted them, and could be easily obtained by contacting the Election Administrator.
Ms. Jenne did obtain a form labeled "Candidate Information Form" at the training meeting. This form is, as the Election Administator representatives explained at the meeting, a form which is intended for the local unions to use to obtain the correct spelling of the names and correct social security numbers of all of the candidates who have been nominated at the local's nominations meeting. Ms. Jenne, who is new at the local union process, misunderstood the purpose of the form. She believed this to be a form intended for members to submit their written nominations, seconds, and acceptances of nominations to the secretary-treasurer instead of attending the nominations meeting in Yakima, Washington.
Subsequently, Ms. Jenne organized a meeting of her coworkers who wished to run as delegates. Since all of her coworkers live and work in the Kennewick area, which is 85 miles from the local union hall and the site of the nomination meeting, her coworkers were eager to sign the form she provided rather than attend the meeting in Yakima. Therefore, Ms. Jenne and eight of her coworkers who intended to run as delegates filled out the "Candidate Information Form" in their own names. All of the candidates then spoke to fellow members about whether they agreed to nominate or second their candidacy.
After speaking to their fellow members, three candidates, candidates Jenne, Parker, and Mr. Knode obtained the actual signatures and social security numbers of six of their fellow members as their nominators and seconders on their "Candidate Information Forms." The other six candidates did not.[1]
Candidate Boles obtained the signature of a fellow member (Robert Orr) as a seconder, only on his "Candidate Information Form;" however, he himself signed the name of another member, Kathy Boles, who agreed to be his nominator. The other five candidates (candidates Brown, Telander, Wilcox, Tompkins, and Madrigal) filled out, in their own handwriting, the names and social security numbers of local union members who agreed to nominate and second them. All of the candidates, either before or after obtaining (or filling out) the nominators' and seconders' names and social security numbers, wrote at the bottom of the forms "I accept the nomination for delegate," signed them, and dated them (September 11, 2000).[2]
On Monday, September 11, 2000 (the same day as the candidates signed their acceptances on the forms), Ms. Jenne drove to the local union hall. There, she first approached Helena Lopez, the local's TITAN operator, and asked her if the forms she held looked OK. Ms. Lopez told her that she did not know, but that she should "ask Al," the local's secretary-treasurer. Mr. Jenne then approached Al Hobart, just as he was coming out of his office, and handed him the forms along with a slate declaration form containing the names of six of the candidates (Ms. Jenne, Ms. Parker, Mr. Knode, Ms. Brown, Mr. Telander, and Mr. Wilcox). Ms. Jenne states that she presented the nominations for delegate along with a slate declaration form to Mr. Hobart in Ms. Lopez' presence. She states that she asked Mr. Hobart if she had filled them out correctly, and that Mr. Hobart told her that everything looked in order and that the forms seemed to be "just fine." She also told him to get in touch with her if there were any problems, and that she would be coming to the meeting on Thursday, September 14, 2000.
Mr. Hobart states that he remembers Ms. Jenne approaching him as he came out of his office, asking him to look over the papers she was carrying and responding, "Sure." He states that at no time did Ms. Jenne explain that these forms were meant to be written nominations, and that he did not, in fact, realize that they were intended as such until Thursday evening, the night of the nominations meeting. Until then, he states that he merely thought that they were meant to provide candidate information and that the candidates, seconders, and nominators would appear on the floor of the meeting itself.
While Mr. Hobart may not have known that the forms were meant to be written nominations, Ms. Lopez did assume that they were meant for that purpose. After Ms. Jenne's meeting with Mr. Hobart, Ms. Lopez and Kim Riste, secretary of the local, checked the eligibility of the members seeking nomination (Ms. Brown and Mr. Madrigal), whose eligibility to run as delegates (and in Ms. Brown's case, to second a nomination) is also being questioned in this protest.
By all accounts, Mr. Hobart gave the forms only a very quick look on September 11, 2000, when he was rushing off to negotiations. On Thursday afternoon, however, he told Ms. Riste, that the forms, which Ms. Jenne submitted, were not proper nominations. On Thursday night, when Ms. Jenne arrived, he pulled her into her office and told her "we're challenging all of these nominations" because of the validity of the signatures. When Ms. Jenne asked him why he didn't call her earlier so that she could have fixed them, he told her he'd thought she was bringing everyone to the meeting.
After this conversation, Mr. Hobart and Ms. Jenne entered the meeting as it was beginning. Ms. Jenne did not ask anyone at the meeting to nominate or second her, or any of the other candidates from her workplace seeking nomination. She states that because the meeting had begun, she could not lobby the people present to nominate her or any of the other candidates seeking nomination. Mr. Hobart states that there were people among the 18 members present who would likely have nominated her if she had asked. At the meeting, Mr. Hobart announced the nine candidates' nominations, seconds, and acceptances along with a statement that there were challenges to the validity of these submissions.
Analysis and Conclusion
Resolution of this protest requires that we decide, first, whether any of the forms submitted by Ms. Jenne to Mr. Hobart can be considered to be valid "written nomination[s] or second[s]" at all. Article II, Section 5(f) provides:
Any member eligible to nominate or second a nomination may do so by a writing submitted to the Local Union Secretary-Treasurer. A written nomination or second must be received by the Local Union Secretary-Treasurer no later than 5 p.m. of the day immediately prior to the day of the relevant nomination meeting. The writing shall state whether it is a nomination or a second, the name of the member being nominated or seconded and whether the nomination or second is for delegate or alternate delegate. It shall be signed by the member submitting the nomination or second and shall contain his/her Social Security number. At the nomination meeting, the presiding Local Union officer shall announce and treat the written nomination or second as if it had been made from the floor of the meeting. (emphasis added)
Mr. Lee argues that none of the forms submitted by Ms. Jenne to Mr. Hobart comply with the Rule, first, because they "were not indicated to be for the purpose of nomination and/or second purpose;" and second, because they do not identify the office for which each candidate is nominated. In this, he seems to be focusing on the Rule's requirement that the writing "shall state whether it is a nomination or a second," as well as the requirement that the writing "shall state…whether the nomination or second is for delegate or alternate delegate."
Mr. Lee's focus on the first point, whether the writing "state[s] whether it is a nomination or a second," is not entirely misplaced. Certainly, the fact that the members wrote what they clearly intended to be their nominations, seconds, and acceptances on a form marked "Candidate Information Form," (a form which, in itself, is intended for an entirely other purpose) was unfortunate and could be expected to cause at least some initial confusion.
However, we believe that the content of the form (particularly, with the writings and signatures of the candidates "accepting the nomination" for delegate as well as the names and social security numbers of the nominators and seconders) along with the context in which it was given to the secretary-treasurer (the person specified in the Rule as the person to receive these forms) three days prior to the day of the nomination meeting, is enough to demonstrate that the forms were intended to constitute the written nominations and seconds of the members. We find it convincing that the TITAN operator conceded that she assumed, after first looking at the forms, that they were written nominations; and that the secretary-treasurer, presumably at a time when he was not rushing or preoccupied, got a chance to look over the forms again, also recognized that they were intended to be written nominations. Moreover, we find that in this context, the fact that each of the members is identified, on each form, as intending to be a "nominator" or "seconder" of the candidate is enough to satisfy the requirement that the writing "state whether it is a nomination or a second" under the rule.
As to the second point, Mr. Lee argues that the writings should be invalid because the nominators do not, themselves, specify whether the candidate is seeking the position of delegate or alternate delegate. However, the rule does not, by its terms, require that the nominator specify whether the candidate is seeking the position of delegate or alternate delegate, but only that "the writing shall state whether the nomination is for delegate or alternate delegate." (emphasis added) Like the Election Officers before us, we are not willing to import an additional requirement to the Rules, particularly where, in doing so, the effect would be to dampen the underlying principles of member participation and union democracy as set forth in the Rules. Sather, P498 (March 5, 1996); Schroeder, P427 (February 26, 1996); McGill, P331 (January 25, 1996); Prestridge, P 300-301 (January 25, 1996).
We do find Mr. Lee's third argument persuasive as to six of the seven candidates he mentioned. He states that any forms that are not signed by the nominator or seconder cannot be accepted as members' written nominations or seconds. We agree that the Rule unconditionally requires that the nomination "shall be signed by the member submitting the nomination or second." Mr. Lee identifies seven members, candidates Boles, Wilcox, Madrigal, Brown, Jenne, Tompkins, and Telander, as submitting forms which are not signed by the nominator or seconder. Upon inspection of the forms themselves and the accompanying letters describing the circumstances in which they were filled out, we agree with Mr. Lee that the members listed, except for Ms. Jenne, have submitted forms which have not been signed by the nominator and/or the seconder.
Indeed, it is apparent from the face of the forms and from the affidavits accompanying them that, on the forms of candidates Boles, Wilcox, Madrigal, Brown, Tompkins, and Telander, either or both of the names of the nominator and/or seconder were filled out by the candidate him or herself, albeit with the nominator's or seconder's agreement. In Ms. Jenne's case, however, we find that the nominator and seconder, rather than Ms. Jenne herself, have indeed "signed" her forms (even though one signature is printed rather than in scripted form).
Thus, we find that the six remaining candidates listed (Mr. Boles, Mr. Wilcox, Mr. Madrigal, Ms. Brown, Mr. Tompkins, and Mr. Telander) have not submitted forms which comply with the requirements of the rule. As to candidate Jenne, however, we find that her form is signed with both the names of the nominator and the seconder. Therefore, we find that she has, indeed, submitted a form within the requirements of the rule. The other two candidates (Parker and Knode) have not been identified by Mr. Lee as lacking signatures on their "Candidate Information Forms." Even if they had been, we find that their forms are, indeed, properly signed by members as candidates and nominators and that their forms therefore comply with the requirements of the rule.
Ms. Jenne argues that any mistakes which the local 760 members made in filling out their written nominations should be excused by their inexperience with union politics and the Rules governing the current election. We are not unsympathetic to the plight of members in such circumstances. While there have been situations in which past Election Officers have tried to be accommodating in keeping with the underlying principles of member participation and union democracy, these goals cannot be an excuse for dismissing explicit requirements in the Rules. Every member has the responsibility of making sure that he/she is familiar with the Rules. Every member would also have received notice of the nomination rules by the nomination notice that was posted at the local union bulletin boards and mailed to each member. In this case, the requirement that a nominator and a seconder actually sign his or her own written nomination/second of a candidate, in lieu of appearing and nominating or seconding in person, is integral to the fairness and integrity of the process itself. Without it, there would be no way of ensuring that a candidate was actually nominated or seconded by the particular member listed on the writing.
Ms. Jenne appears to argue that any mistakes that any of the local 760 members may have been made in filling out their forms should have been identified, and timely pointed out, by Mr. Hobart. While it is possible that Mr. Hobart did not exercise utmost care and diligence in inspecting the forms submitted to him by Ms. Jenne on September 11, 2000, and promptly reporting to her any problems he found in them, we do not find any evidence in the record to support a conclusion that he actually recognized their intended nature prior to September 14, 2000 and then purposely misled Ms. Jenne about any apparent deficiencies in the forms. In the absence of such evidence, we will not explore the question of whether any mistakes made by union members should be overlooked based on the conduct of Mr. Hobart.
II. Eligibility of Candidates Brown and Madrigal
Mr. Lee claims that the nominations of Brown, Madrigal, and Telander cannot stand because Brown and Madrigal are ineligible to run for the office of delegate and because Brown was ineligible to nominate Telander at the time of the nomination meeting. He claims that Brown and Madrigal are ineligible to run for the office of delegate because they lack 24 months of continuous good standing in the local, and are (or have been) on a withdrawal card. He also claims that Brown is ineligible to nominate a candidate for delegate because she is currently on a withdrawal card.
In order to be eligible to run for delegate or alternate delegate to the IBT International Convention, a member must be in continuous good standing with her local union, with her dues paid to the local union for a period of 24 consecutive months prior to the month of nomination with no interruption in active membership due to suspensions, expulsions, withdrawals, transfers or failure to pay fines or assessments. Rules, Article VI, Section 1(a)(1). In order to be eligible to nominate or second a candidate for delegate or alternate delegate, the nominator or seconder must be in good standing, with his/her dues paid through the month of the nominations meeting. Rules, Article II, Section 5(h).
Our investigation reveals that the local did place candidate Madrigal on withdrawal for the period from April 28, 2000 to June 14, 2000. The local also placed candidate Brown on withdrawal from the period April 28, 2000 to September 26, 2000. In both cases, this was an involuntary withdrawal, which the members did not seek and, in fact, of which they were unaware.
While a candidate's voluntary withdrawal during the 24 consecutive month period will normally cut off his/her eligibility to run as a delegate or alternate delegate (as would a nominator's or seconder's voluntary withdrawal during the month before the nomination meeting), this is not the case where the withdrawal has been imposed involuntarily upon the member. Instead, where a withdrawal has been imposed upon a member in accordance with a local union's policy (rather than at the member's request), Election Officer Quindel held that the withdrawal is not to be considered an interruption in the member's continuous good standing status so long as a member on check-off had sufficient earnings from which dues could have been deducted during the months in question. Zier, E019 (January 29, 1996), aff'd, 96 EAM 72 (February 1, 1996); Hiltz, E029 (January 17, 1996).
Indeed, our investigation revealed that both Madrigal and Brown have had sufficient earnings, whether through income, paid sick leave, or other paid leave, during all of the months during which the local put them on withdrawal as well as throughout the 24 consecutive month period. Therefore, these candidates are, in fact, eligible to both run as candidates and to nominate other candidates. However, their nominations, as well as the nomination of candidate Telander, must be invalidated because of the lack of nominator/seconder signatures on their written submissions of nominations.
Accordingly, it is the determination of the Election Administrator that the "Candidate Information Forms" submitted on behalf of Parker, Knode, and Jenne comply with the requirements for "written nominations" under Article II, Section 5(f) of the Rules, and that their nominations are valid. However, the "Candidate Information Forms" submitted on behalf of candidates Boles, Wilcox, Madrigal, Brown, Tompkins, and Telander do not comply with the Rule, so their nominations cannot be allowed to stand.
For the foregoing reasons, the protest is GRANTED with regard to the nominations of Boles, Wilcox, Madrigal, Brown, Tompkins and Talender and DENIED with regard to the nominations of Knode, Parker and Jenne. Further, the protest is DENIED with regard to the eligibility of candidates Brown and Madrigal.
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 Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify that basis for the appear, and shall be served upon:
Kenneth Conboy
Election Appeals Master
Latham & Watkins
Suite 1000
885 Third Avenue
New York, New York 10022
Fax: 212-751-4864
Copies of the request for hearing must be served upon the parties listed below, as well as upon the Election Administrator for the International Brotherhood of Teamsters, c/o International Brotherhood of Teamsters, 25 Louisiana Avenue, N.W., Washington, D.C. 20001, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.
William A. Wertheimer, Jr.
William A. Wertheimer, Jr.
Election Administrator
cc: Kenneth Conboy
Christine Mrak
2000EAD31
DISTRIBUTION LIST VIA UPS NEXT DAY AIR (EXCEPT WHERE OTHERWISE SPECIFIED):
Patrick Szymanski Kenneth Pederson
IBT General Counsel Davies, Roberts & Reid
25 Louisiana Ave. NW 101 Elliot Avenue West
Washington DC 20001 Suite 550
(By Interoffice Mail) Seattle, WA 98119
Fax: (206) 285-8925
Bradley T. Raymond (By Facsimile and U.S. Mail)
Finkel, Whitefield, Selik, Raymond,
Ferrara & Feldman Local Union 760
32300 Northwestern Highway 1211 W. Lincoln Avenue
Suite 200 Yakima, WA 98902
Farmington Hills, MI 48334 Fax: (509) 452-7354
Fax: (248) 855-6501 (By Facsimile and U.S. Mail)
(By Facsimile and U.S. Mail)
J. Douglas Korney Rick Lee
Korney & Heldt 4310 Joe Miller Road
30700 Telegraph Rd. Malaga, WA 98828
Suite 1551
Bingham Farms, MI 48025 Iona Parker
Fax: (248) 646-1054 4021 W. Okanogan Ave.
(By Facsimile and U.S. Mail) Kennewick, WA 99336
Tom Leedham Robert Knode
18763 South Highway 211 507 N. Arthur #104
Molalla OR 97038 Kennewick, WA 99337
Fax: (503) 824-3484
(By Facsimile and U.S. Mail) Betty J. Jenne
707 W. 5th Ave.
Barbara Harvey Kennewick, WA 99336
Penobscot Building
Suite 1800 Abel Madrigal
645 Griswold 1909 S. Garfield
Detroit, MI 48226 Kennewick, WA 99337
Fax: (313) 963-3572
(By Facsimile and U.S. Mail)
Ron Boles Scott R. Telander
501 S. Morain 28906 S. 855 Drive SE
Kennewick, WA 99336 Kennewick, WA 99338
Betty Grdina Patricia Brown
Yablonski, Both & Edelman 830 E. 14th
Suite 800 Kennewick, WA 99336
1140 Connecticut Ave. N.W.
Washington, D.C. 20036 Gary L. Wilcox
Fax: (202) 463-6688 2839 W. Kennewick Ave.
(By Facsimile and U.S. Mail) # 307
Kennewick, WA 99336 David Levin
Teamsters for a Democratic Union Charlie Tompkins
500 State Street 1113 W. 29th Ave.
Brooklyn, NY 11217 Kennewick, WA 99337
Fax: (718) 875-9336
(By Facsimile and U.S. Mail)