IN RE: BRAD SLAWSON, JR.,
Protest Decision 2001 EAD 81
Issued: January 17, 2001
OEA Case No. PR010413MW & PR010414MW
See also Election Appeals Master decision 01 EAM 19 (KC)
Brad Slawson, a member of Local 120, filed pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules")against Local 120 members Harry Villella, Jr. and Marvin Kohel challenging their nomination as delegate candidates.
Election Administrator representative Dennis Sarsany investigated the protest.
Findings of Fact
Local 19 held its nomination meeting for its election of IBT convention delegates on January 2, 2000. James DeHaan, a retired U.S. Department of Labor employee, was hired by the local union to assist in the delegate election process and presided at the meeting. Ballots for the delegate election are to be mailed on February 1, 2001.
Prior to 5:00 p.m. on the last business day before the nomination meeting, a written nomination and a written second of the nomination were received by the local union on behalf of Villella. The written nomination and the written second both stated that Villella was being nominated for the office of "delegate or alternate."
At the nomination meeting, Villella was told by DeHaan that the written nomination and second were defective because Villella could not run for both offices simultaneously due to the provisions of Article II, Section 5(i) of the Rules, which bars simultaneous candidacies by a member for delegate and alternate delegate. Villella was told that he must select the office for which he wished to be nominated. Acting in good faith, Villella did so by crossing out the words "or alternate" on each written submission and giving them to DeHaan. Villella then stated his acceptance of nomination as a delegate candidate.
The protestor now contends that Villella's written nomination and second were not perfected until the nomination meeting, after the deadline for the submission of written nominations and seconds established by Article II, Section 5(f) of the Rules. While this is technically correct, we conclude that Villella acted in good faith and reasonably concluded that he had remedied the defect in the written nomination and been properly nominated for delegate by changing the nomination form, and that a nomination from the floor at the meeting was not necessary.
Kohel, in contrast, was nominated in person at the Local 120 nomination meeting by member James Rademacher. Member Michael Loren seconded the nomination. Kohel did not attend the meeting. Instead, a written acceptance signed by Kohel was submitted to DeHaan.
Subsequent to the meeting, Loren contacted DeHaan and advised that he had attended the nomination meeting with two written acceptances from Kohel, one for delegate and one for alternate delegate. He informed DeHaan that he had erroneously given DeHaan the alternate delegate acceptance. The written acceptance form submitted at the meeting said that Kohel accepted a nomination "As A Candidate For Altenate (sic) Delegate." A written acceptance by Kohel for his delegate nomination was thereafter submitted to the local union two days after the nomination meeting.
Kohel's two written acceptances belie Loren's claim that they were identical acceptances for the two different offices and that he simply made a mistake at the nomination meeting by submitting the wrong form. Thus, while both are in the same hand and while the body of both documents contain identical language, the initial submission accepting the nomination for alternate delegate is drafted on a piece of 5 x 8 notepad paper and is dated "12-30-2000." The other acceptance is undated and written on 8 ½ x 11 notepad paper. From these varying forms, we conclude that the two documents were not drafted contemporaneously, providing different options, as claimed by Loren. This conclusion is buttressed by Kohel's failure to return the calls of our investigator, despite his having been left messages to do so. Based on the foregoing, we conclude that the written acceptance for Kohel's delegate nomination was not present at the nomination meeting and was likely drafted thereafter. The protestor contends that the failure of Kohel to have a written acceptance of his nomination for delegate tendered at the nomination meeting disqualifies his candidacy for that provision under Article II, Section 5(h) of the Rules.
Analysis
Article II, Section 5(f) of the Rules provides that:
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 such meeting.
(Emphasis supplied.)
Similarly, Article II, Section 5(h) provides that a member who is properly nominated and seconded may "accept his/her nomination at the time made … in writing. If acceptance is made in writing, the document must be presented to the presiding Local Union officer no later than the time the member is nominated."
It is true that Villella's nomination did not comply with the express terms of Article II, Section 5(f), in that the written nomination and second received by the local union before the deadline established by that provision did not state "whether the nomination or second [wa]s for delegate or alternate delegate." Instead, both were specified, and this defect was not corrected until the nomination meeting, and was corrected by the candidate rather than the nominator or seconder.
However, here we must conclude that Villella's nomination should not be rejected, due to his good faith belief that this technical defect was corrected at the nomination meeting.
Article I of the Rules states that the Election Officer is charged with "the conduct of fair, honest, open and informed elections," and has the authority "to take all necessary actions in supervising the election process to insure fair, honest, open and informed elections." Measured against the scope of this authority, it cannot be said that it would serve the underlying purpose of the Rules or the Consent Decree if Villella were to be barred from running for delegate. While there is no question that the written nominations that were tendered should have designated the nominator's intent to nominate Villella as a delegate candidate, there is no indication of any attempt by the nominee or his supporters to undermine the nomination of delegates in Local Union 120. Instead, Villella altered the written nomination because he believed that this would allow his nomination to stand based on what transpired between himself and the chair at the meeting.
In such a situation, a member otherwise properly entitled to stand as a candidate should not be disenfranchised. Sather, P498 (March 5, 1996); McGill, P331 (January 25, 1996); Prestridge, P300 (January 25, 1996).
A different conclusion is required as to Kohel's nomination. The written acceptance required to be submitted at the nomination meeting indicated Kohel's acceptance of nomination for the office of alternate delegate. Thus, Kohel did not accept in writing the nomination for the position for which he was nominated - delegate - by "no later than the time [he] was nominated", as required by Article II, Section 5(h) of the Rules.
For the foregoing reasons, the protest is GRANTED in part and the nomination of Kohel is declared void. The nomination of Villella is, however, declared valid.
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 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 15th Street NW, Tenth 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
2001EAD 81
DISTRIBUTION LIST VIA UPS NEXT DAY AIR:
Patrick Szymanski
IBT General Counsel
25 Louisiana Ave. NW
Washington, DC 20001
Bradley T. Raymond
Finkel, Whitefield, Selik,
Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
J. Douglas Korney
Korney & Heldt
30700 Telegraph Road
Suite 1551
Bingham Farms, MI 48025
Barbara Harvey
Penobscot Building
Suite 1800
645 Griswold
Detroit, MI 48226
James DeHaan
448 Maincentre
Northville, MI 48167
Betty Grdina
Yablonski, Both & Edelman
Suite 800
1140 Connecticut Ave. NW
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Brad A. Slawson, Jr.
2852 179th Ave NE
Ham Lake, MN 55304
IBT Local 120
2635 University Ave. West
Suite 120
St. Paul, MN 55114
Harry Villella Jr.
1910 Walnut St.
St. Paul, MN 55113
Marvin Kohel
16353 Potomac St.
Forest Lake, MN 55025