Protest Decisions

IN RE: MIKE McGAHA and GARY SLOOP,
Protest Decision 2001 EAD 306
Issued: April 16, 2001
OEA Case No. PR31611AT and R032112AT

Mike McGaha and Gary Sloop, members of Local 391, 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"). McGaha alleges that the Home Team slate improperly used mailing labels obtained for the delegate election to make a non-campaign mailing. Sloop, a member of the Home Team slate, alleges that Local 391 improperly interfered with that slate's right to conduct a candidate mailing in the delegate election. We deferred these protests for post-election consideration pursuant to Article XIII, Section 2(f)(2).

Election Administrator representative J. Griffin Morgan investigated the protests.

Findings of Fact and Analysis

Local 391 had a contested election. The ballots were counted on March 7, 2001.

Local 391 secretary-treasurer McGaha, a winning candidate for delegate in the Local 391 election, filed the first of the two above-captioned protests after receiving a post-election mailing from the Home Team slate. He alleges that the slate used its rights under the Rulesto obtain mailing labels and mail out literature that was not campaign material in the delegate election. The basis for the allegation was that the only mailing sent by the Home Team (titled "Did You Pledge Your Support?") was not mailed until March 12, 2001, after the ballots were counted.

Sloop, a losing candidate for delegate on the Home Team slate, responded with his protest. He alleges that the Home Team's mailing, which was sent to approximately 180 stewards, was scheduled to be mailed March 5, 2001 before the ballots being counted. He asserts it was not mailed until March 12, 2001, a week later and after the ballots were counted, because McGaha provided the Home Team with the incorrect address for Affiliated Graphics, the printing and mailing provider.

The address provided by McGaha in the local's "advisory" to candidates was 3342 Boydensburg Road, Brentwood, Maryland. The address was provided to the candidates on January 13, 2001, after the local's nomination meeting, as Local 391's "procedures for complying with candidates' request for distribution of literature" pursuant to the Rules, Article VII, Section 7(g). The 3342 Boydensburg Road, Brentwood, Maryland address that was provided was incorrect for two reasons. First, the former location of Affiliated Graphics was 3342 Bladensburg Road, Brentwood, Maryland, not 3342 Boydensburg Road, Brentwood, Maryland. Second, Affiliated Graphics moved from 3342 Bladensburg Road, Brentwood, Maryland in February 1999 to 4801 Viewpoint Place, Cheverly, Maryland.

According to Brendan Connors of Affiliated Graphics change of address notifications were sent to customers at the time of the move. Local 391 is a customer of Affiliated Graphics. The ballots for the Local 391's 1999 officer election were printed by Affiliated Graphics and Affiliated Graphics publishes the Local's newsletter. The incorrect address was lifted from a similar "advisory" published as part of the Local's 1999 officer election.

Affiliated Graphics still uses the 3342 Bladensburg Road location as a storage and mailing facility. UPS makes pick ups there almost every weekday according to Brendan Connors. Deliveries made to 3342 Bladensburg Road are normally brought over to Affiliated Graphics 4801 Viewpoint Place, Cheverly, Maryland, which is about five minutes away, by an Affiliated employee and possibly on occasion by UPS.

The incorrect address was used several times by McGaha during February 2001 in mailing the labels requested by the Home Team and by his own slate. Those labels were mailed by Ann Roberts, the Titan operator who printed the labels. She obtained the address from the "advisory". She had been provided a copy of the "advisory" because she was the Titan operator with responsibility for printing the labels requested by the campaigns.

The first time the correct address appears is on February 21, in a mailing sent by the bookkeeper Bob Royals. He used the correct address because he looked at an invoice from Affiliated Graphics for the address. Royals pays the bills for the printing of Local 391's newsletter and has the invoices.

There is no evidence that McGaha's error in using the wrong address in the "advisory" was anything other than an unintentional misrepresentation. However, his error is contrary to Article VII, Section 7(e) of the Rules, which requires that the "Union shall exercise all reasonable efforts to ensure that each candidate's campaign literature is processed and distributed in a complete and prompt manner." Moreover, the error is compounded because the correct address was known by Local 391, or at least one of the staff of Local 391, which had an ongoing relationship with Affiliated Graphics. Thus, all reasonable efforts were not exercised to ensure a prompt distribution of campaign literature.

The error did not, however, affect the results of the election. The Home Team sent stuffed envelopes containing the leaflet Did You Pledge Your Support? to Affiliated Graphics on Friday, March 2, 2001 with the understanding that Affiliated Graphics could address and mail the envelopes on Monday, March 5, 2001. The package was sent to 3342 Boydensburg Road, Brentwood, Maryland via UPS Overnight Saturday delivery. Affiliated Graphics does not work on Saturdays. The UPS package was not delivered until the following Friday, March 9, 2001, because of the lack of a proper address. The mailing was then sent the next workday, Monday, March 12, 2001.

The incorrect address did not impair the Home Team's ability to communicate with the local's membership before the vote count. Affiliated Graphics sent out the Home Team's mailing one business day after it was received. This was consistent with Gary Sloop's expectations. Sloop understood from the conversations he or his wife had with Brendan Connor, that Affiliated Graphics could process the Home Team's small mailing on Monday March 5 or Tuesday March 6, if it was received on the 5^th. Assuming Affiliated Graphics would have processed the Home Team's literature on March 5 in a manner identical to the way it was actually processed on March 9, the Home Team's mailing would have been sent out on March 6, one business day after it was received. It would thus not have been received by the members of Local 391 until after the March 7 vote count.

Under the best case, if the UPS package had been addressed correctly it would have arrived on Monday, March 5, 2001. Assuming Affiliated Graphics was able to address the envelopes and mail them out the same day, the Home Team's literature would have been placed in the mail in Maryland on Monday March 5. It still would have been delivered too late for the recipient to read it and mail in a ballot and have the ballot received by 9:00 a.m. March 7.

Moreover, the Home Team's mailing was sent to stewards and alternate stewards, the group of individuals most unlikely to wait until the last day to mail in their ballots. Thus, it does not appear that the faulty address interfered with the Home Team's ability to communicate its message to voters before the vote count. In light of the foregoing findings, Sloop's protest is DENIED as it is not remediable under Article XIII, Section 3(b) of the Rules.

A review of Did You Pledge Your Support? does raise the question of whether the material was intended to be campaign material for the delegate election. The document does respond to campaign material from the opposing slate. However, the mailing never asks for the members' vote. Other Home Team literature, passed out at the gates, did. However, the violation alleged by McGaha is also not remediable under Article XIII, Section 3(b), and it is accordingly DENIED.

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, Tenth Floor, Washington, DC 20005 (fax: 202-454-1501), all within the time 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 306

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