Protest Decisions

IN RE: PHILLIP M. DEPIETRO,
Protest Decision 2001 EAD 77
Issued: January 3, 2001
OEA Case No. PR120601ME

Phillip M. DePietro, a member of Local 773, filed a 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")against Local 773. DePietro alleges that the local union improperly failed to timely notify its membership of the submission of its proposed local union election plan to the Election Administrator.

Election Administrator representative William B. Kane investigated the protest.

Findings of Fact

Local 773 is headquartered in Allentown, Pennsylvania. The local union drafted a proposed election plan for its delegate election, which Local 773 secretary-treasurer Charles Shafer signed on September 21, 2000.[1]  Article II, Section 4(a) of the Rules required the local to submit its proposed plan to the Election Administrator by September 30, 2000. The Election Administrator received Local 773's proposed plan on Monday, October 2, 2000.

Article II, Section 4(e) of the Rules provides that "[a]s soon as possible, but in no event later than five (5) days after the Local Union has submitted its Plan to the Election Administrator, the Secretary-Treasurer of the Local Union shall post a notice (on a form promulgated by the Election Administrator) on all Local Union bulletin boards advising that the Local Union Plan has been submitted to the Election Administrator and further advising members of their rights under Subsections (c) and (d) above and shall maintain such posting until replaced by a posting of the Plan Summary." (The "Plan Summary" is prepared by the Election Administrator upon his approval of the local union plan.)

The posting on all local union bulletin boards of the notice of submission of the proposed local union plan to the Election Administrator serves to inform members of their right to "submit written comments to the Election Administrator concerning [the] proposed Local Union Plan, [which members must do] within fifteen (15) days of the submission of the Plan to the Election Administrator." Rules, Article II, Section 4(d).

Despite the above requirements, Local 773's secretary-treasurer failed to post the required notice of submission of the proposed local union plan to the Election Administrator within five days of that submission. Instead, the required notice was not posted until November 8, 2000, after the Election Administrator's regional director notified the local of Shafer's failure to do so.

The Election Administrator did not receive any member comments concerning Local 773's proposed election plan during November 2000, and the plan was approved on November 29, 2000. On December 6, 2000, DePietro telephoned the Election Administrator's headquarters office and was informed of the plan's approval. In response, he filed the instant protest, claiming that Shafer's failure to timely post the local's notice of election plan submission "had the effect of placing every member of Teamster Local 773 well outside the time limit of the commenting period which is, according to the election plan submission notice, … a fifteen day period beginning from the submission date of September 28, 2000."

In addition, the letter containing the instant protest included DePietro's comments on the proposed plan. His comments concerned the "non-payment of wages of three of the five alternate delegates" to be elected. The Election Administrator has determined that Local 773's plan need not be modified based upon DePietro's comments. No other member comments, timely or untimely, were received concerning Local 773's proposed election plan. Under the plan as approved, the nomination meeting for the local's delegate election is set for February 18, 2001, with ballots to be mailed on March 21, 2000 and counted on April 12, 2001.

The Notice of Local Union Plan Submission Form posted on and after November 8, 2000 by Shafer on Local 773's bulletin boards informed members that the local's proposed plan "was submitted to the Election Administrator on September 28, 2000", that "[t]he Election Plan is available for inspection at the Local Union['s] office", and that any "interested Union member or body has the right to submit written comments to the Election Administrator concerning the Local Union Plan within fifteen (15) days of the submission of the plan to the Election Administrator." Thus, a member seeing this Notice, which was first posted on November 8, 2000, could reasonably conclude that the time for submission of comments on the proposed plan had already run.

Analysis

Local 773 secretary-treasurer Shafer violated Article II, Section 4(e) of the Rules by failing to post the required notice of the local's submission of its proposed local union plan on its bulletin boards within five days of submission to the Election Administrator. This failure meant that Local 773 members missed the opportunity to exercise their right to submit their comments on the proposed local union plan to the Election Administrator within fifteen days of plan submission. For this reason, the protest in this case is GRANTED.[2]

The appropriate remedy in this case requires that the Election Administrator's approval of Local 773's election plan be rescinded, and that the previously approved plan revert to the status of a proposed plan. The remedy will further provide that the period for member comment on the local union plan be reopened, and that the local union post a new notice to members informing them that the Election Administrator will consider any such comments if submitted by the close of the new comment period.

Local 773's nomination meeting is currently set for February 18, 2001. Under Article II, Section 5(d) of the Rules, notice of that meeting must be mailed to each member's home at least twenty-one days before the meeting, which means that here such mailing must be accomplished by January 28, 2001. In addition, the comment period required by the Rules is a fifteen-day period, which is to ordinarily run from submission of the proposed plan to the Election Administrator.

In order to allow Local 773's nomination meeting to go forward on February 18, 2001 (unless that date is modified following receipt of member comments on the proposed plan), we will direct the local union to post the attached notice on all of its bulletin boards by no later than January 8, 2001. The Notice shall remain posted until replaced by a posting of the below-discussed Plan Summary to be issued by the Election Administrator. Member comments on the local union's proposed plan must be received by the Office of the Election Administrator by January 23, 2001. The Election Administrator shall pass on those comments by no later than January 24, 2001, and shall immediately notify the local union of his action and provide the local by facsimile with its Article II, Section 4(g) Plan Summary. The local union shall then post the plan summary on all local union bulletin boards by January 28, 2001, and also mail notice of its February 18, 2001 nomination meeting to its members no later than January 28, 2001. The bulletin board posting of the local's notice of its nomination meeting must also be completed by that date. The Election Administrator's staff shall supervise compliance with each of these deadlines.

An order of the Election Administrator, unless otherwise stayed, takes immediate effect against a party found to be in violation of the Rules. Lopez, 96 EAM 73.

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 in any such appeal upon evidence that was not presented to the Office of the Election Administrator. 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

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon all other parties, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th

Street, NW, 10^th Floor, Washington, DC 20005, 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

2000 EAD 77

ELECTION ADMINISTRATOR NOTICE CONCERNING LOCAL 773 DELEGATE ELECTION PLAN

The Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules") provide procedures for approval of any proposed plan for local union delegate elections submitted by a local union. Those procedures provide that any proposed plan must be approved by the Election Administrator, who has the responsibility to ensure that all local union delegate elections are fair, honest, open and informed. Members have the right to submit comments to the Election Administrator regarding any local union's proposed plan within fifteen days of the local union's submission of the proposed plan to the Election Administrator. The Rules further require that notice of submission of the proposed plan to the Election Administrator, and of the right of members to comment, is to be placed on all local union bulletin boards within five (5) days of its submission to the Election Administrator.

In response to an election protest filed by a Local 773 member, and after investigation, the Election Administrator has determined that Local 773 submitted its proposed Election Plan to the Election Administrator on or about September 28, 2000, but that former Local 773 secretary-treasurer Charles Shafer failed to post the required Notice of Local Union Plan Submission within five (5) days of that date. Instead, the Notice was not posted until November 8, 2000. This failure to post the required Notice violated the Rules.

Accordingly, the Election Administrator has:

· revoked his approval of the proposed Local 773 Election Plan to elect delegates to the June 2001 IBT Convention to be held in Las Vegas, Nevada; and

· ordered that the period for submission of member comments to the Election Administrator on the proposed Election Plan be extended until January 23, 2001.

The proposed election plan is available for inspection at the Local 773 office at 1345 Hamilton Street, Allentown, PA 18102 by any member of the local union, any candidate for International office, the International Union or any subordinate body. Upon request, each of the foregoing has the right to obtain a copy of the plan at no cost. Inspection may be made during the usual hours of Local 773's office, which are Monday through Friday, 7:00 a.m. to 5:00 p.m.

Any interested member or body has the right to submit written comments to the Election Administrator concerning the Local Union Plan. Such comments must be received by the Election Administrator by January 23, 2001. Written comments should be addressed to Office of the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street NW, 10^th Floor, Washington, DC 20005. Phone: 1-800-565-VOTE. Written comments may also be sent to the Election Administrator's Office by telecopy to 202-454-1501.

This is an official notice directed to be posted by the Election Administrator for the International Brotherhood of Teamsters and must not be altered, defaced or covered by any other material.

DISTRIBUTION LIST VIA FACSIMILE AND UPS NEXT DAY AIR:

Patrick Szymanski

IBT General Counsel

25 Louisiana Ave. NW

Washington, DC 20001

Fax: 202.624.6884

Bradley T. Raymond

Finkel, Whitefield, Selik,

Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

Fax: 248.855.6501

J. Douglas Korney

Korney & Heldt

30700 Telegraph Road

Suite 1551

Bingham Farms, MI 48025

Fax: 248.646.1054

Barbara Harvey

645 Griswold

Penobscot Building

Suite 1800

Detroit, MI 48226

313.963.3572

Betty Grdina

Yablonski, Both & Edelman

Suite 800

1140 Connecticut Ave. NW

Washington, D.C. 20036

Fax: 202.463.6688

Tom Leedham c/o Stefan Ostrach

110 Mayfair

Eugene, OR 97404

Fax: 541.607.4484

Phillip M. DePietro

1282 Forest Road

Whitehall, PA 18052

IBT Local 773

1345 Hamilton Street

Allentown, PA 18102

Fax: 610.770.9581

William B. Kane

242 Old Haymaker Road

Monroeville, PA 15146

Fax: 412.373.0119