Protest Decisions

IN RE: CLARENCE SHIFFLETT, JR.,
Protest Decision 2001 EAD 147
Issued: February 8, 2001
OEA Case No. PR020111NE

See also Election Appeals Master decision 01 EAM 34 (KC)

Clarence Shifflett, Jr., a member of Local 707, 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"). Shifflett and twelve other Local 707 members allege that the holding of Local 707's nomination meeting in inclement weather on January 21, 2001 improperly precluded the nomination of several delegate candidates.

Election Administrator representative Jason Weidenfeld investigated this protest.

Findings of Fact

On the morning of Sunday, January 21, 2001, Local 707 held its scheduled nomination meeting for delegates to the IBT International Convention in Franklin Square, New York. Snow fell that morning, dropping about five to eight inches of snow throughout the area where Local 707 has worksites. The snowfall was not unexpected, as media had predicted rain and snow for that Sunday several days before the meeting.

Shifflett and other members who work for Yellow Freight in Maybrook, New York, assert that they would have attended the nomination meeting if not for the weather. Maybrook is more than 60 miles from the nomination meeting site. Of 27 members attending the meeting, two, a steward and an assistant steward, are employed at the Maybrook site.

The day after the nomination meeting, Shifflett phoned Barbara Deinhardt, who had conducted the meeting, to ask what he could do to rectify the problem caused by the weather. She recommended that he write to the Office of the Election Administrator if he wanted to file a protest. One week later, Shifflett sent his protest to the Election Administrator,[1] who received it on January 31, 2001.

Shifflett protested the holding of the nomination meeting during a period of inclement weather. The protest was signed by Shifflett and twelve Local 707 members (collectively "Shifflett") who agreed with its contents, much of which did not pertain to the delegate election.[2]

Analysis

Members can nominate, second, and accept nominations in person at the meeting, or they can do so in writing. Article II of the Rules provides the manner in which members may nominate, second, and accept nominations in writing. Written nominations and seconds must be sent to the local union secretary-treasurer by 5 p.m. of the day preceding the nomination meeting. Article II, Section 5(f). Written acceptances must be presented no later than the time of nomination. Article II, Section 5(h). Local 707 members had until 5 p.m. on Saturday, January 20, 2001 to submit written nominations and seconds.

Shifflett states that the weather prevented him and his colleagues from attending the meeting. Weather forecasts and news articles, however, mentioned the looming storm for days before the meeting. By not submitting any written nominations, seconds, or acceptances ahead of the meeting, Shifflett and his colleagues chose not to avail themselves of the protections afforded by the Rules. The failure to take the precautionary measure of sending written nominations, seconds, and acceptances is not excused by the fact that predicted, inclement weather arose on the day of the nomination meeting. Fulp, P297 (January 26, 1996).

Furthermore, the Rules provide that pre-election protests not "filed within two (2) working days of the day when the protestor becomes aware or reasonably should have become aware of the action protested . . . shall be waived." Article XIII, Section 2(b). On January 22, 2001, Shifflett and Deinhardt discussed the previous day's nomination meeting. Yet, Shifflett did not send the protest letter for another week. We received the letter on January 31, 2001, ten days after the nomination meeting. We hold that Shifflett's delay in sending this protest renders it untimely.

For the foregoing reasons, we DENY the protest.

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 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

2001 EAD 147

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

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

IBT Local 707

14 Front Street

Hempstead, NY 11550

Clarence W. Shifflett Jr.

111 Spruce Drive

Shohola, PA 18458

Barbara C. Deinhardt

52 3^rd Street

Brooklyn, NY 11231

David F. Reilly

22 W. Main St.

North Kingstown, RI 02852