IN RE: PATRICIA AKSAMIT,
Protest Decision 2001 EAD 213
Issued: March 5, 2001
OEA Case No. PR021512WE
See also Election Appeals Master decision 01 EAM 47 (KC)
Patricia Aksamit, a member of Local Union 104, 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"). She challenges the alleged failure of the local to post the notice of delegate election required by the Rules.
Election Administrator representative Michael Four investigated the protest.
Findings of Fact and Analysis
Local 104 held its nomination meeting on January 13. The number of nominations received for the positions of delegate and alternate delegate did not exceed the number to be elected. Accordingly, the nominees were declared elected at the close of the meeting. Within five days following the nomination meeting, the list of nominees was posted at all of the local's worksite bulletin boards with a notation that the nominees had been elected. This protest was filed 30 days later.
The local union raises timeliness and substantive defenses to the protest.
Timeliness. Article XIII, Section 2(b) of the Rules requires that a protest must be filed within two working days "of the day when the protester becomes aware or reasonably should have become aware of the action protested or such protests shall be waived ..." Although the notice of nomination results was posted no later than five days after the January 13 nomination meeting, Aksamit did not file this protest until February 15. The requirement to file protests promptly is an important part of the election process. The short time limits were designed to ensure that alleged violations of the Rules would be quickly brought to the attention of the Election Administrator in order to afford the greatest opportunity for applying an effective remedy in the event a violation is found. Nevertheless, the Election Administrator has not treated time limits as an absolute jurisdictional requirement, but rather as a prudential restriction. A failure to file a timely protest has thus been treated as a defect that can be waived by the responding party. Here, the local has preserved its objection, and the timeliness issue must be resolved.
The protestor did not respond to telephone inquiry from our investigator to explain her untimely filing. However, her protest states that she first brought the substantive allegation she raises here to the U.S. Department of Labor, claiming that no information had been posted in her work area on the procedure for filing election protests under the Rules. The DOL directed her to our office and this protest and our investigation followed.
Through that investigation, we have determined that information concerning the election process administered under the Rules indeed was available to the protestor, despite her claim to the contrary. Thus, the local complied with all aspects of the Rules' notice requirements, including the posting of the notice of the local union plan for the delegate election and the notice of nomination meeting. Each of these notices included information on how to contact the Office of the Election Administrator. The notice of nomination meeting was posted on each worksite bulletin board and mailed to each member, Aksamit included, as required by Article II, Section 5(d) of the Rules. Further, Aksamit's address on the TITAN-generated mailing list the local used matches the address she included on her protest. Accordingly, Aksamit cannot credibly maintain she had no information concerning the Rules or the Election Administrator's role in enforcing them. We DENY her protest, therefore, as untimely.
Merits. Had Aksamit timely protested the local's alleged failure to post a notice of delegate election, the protest would be denied. Article II, Section 6 of the Rules states that "[w]hen the number of nominees for delegate or for alternate delegate does not exceed the number to be elected for that position, the list [of nominated candidates] to be posted shall state that such nominees have been declared elected." Such was the case here, thus rendering a delegate election - and notice of it - unnecessary. Therefore, we DENY the protest because it lacks merit.
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 (facsimile: 202-454-1501), 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 213
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
1140 Connecticut Ave. NW
Suite 800
Washington, D.C. 20036
Tom Leedham c/o Stefan Ostrach
110 Mayfair
Eugene, OR 97404
Patricia Aksamit
21618 North 86th Lane
Peoria, AZ 85382
IBT Local 104
1450 South 27th Avenue
Phoenix, AZ 85009
Joseph Kaplon
Wohlner, Kaplon, Phillips, Young & Cutler
15760 Ventura Boulevard
Suite 1510
Encino, CA 91436
Michael Four
Schwartz, Steinsapir, Dohrmann & Sommers
6300 Wilshire Boulevard
Suite 2000
Los Angeles, CA 90048