IN RE: RICHARD BLACK,
Protest Decision 2001 EAD 329
Issued: April 26, 2001
OEA Case No. PR041711AT
See also Election Appeals Master decision 01 EAM 74 (KC)
Local 728 secretary-treasurer Richard Black filed a pre-election protest pursuant to Article XIII of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). Black alleges that Local 728 vice president Waymon Stroud violated the Rules by causing Local 728, through a vote of its membership after the delegate election count, to abandon the terms of its approved election plan providing that the local union would not pay the convention-related expenses of its elected alternate delegates.
Election Administrator representative Jason Weidenfeld investigated the protest.
Findings of Fact
Local 728's local union plan for conducting its delegate election was submitted to the Election Administrator on September 19, 2000. Item 5(d) of the plan stated that the local would not pay the expenses for alternate delegates to attend the convention. This choice was permitted by Article III, Section 3(b) of the Rules, and was required to be stated in the local's election plan by Article II, Section 4(b)(9). In turn, the Election Administrator and the local informed the membership of this choice pursuant to the provisions of Article II, Section 4(g) of the Rules. Among other things, the purpose of the Article II, Section 4(g) communication to the members is to allow them to understand the ground rules for convention attendance (including the expenses of attendance), so that they can meaningfully decide whether to mount a candidacy under the Rules.
Stroud and Earl Parker were delegate candidates on the Local 728 Unity slate, which won Local 728's delegate election. After their slate had won the delegate election, Stroud and Parker were each appointed by the IBT to serve on a committee at the convention. As a result, Local 728 is not required to pay their convention-related expenses.
On April 13, 2001, knowing that these expenses would not have to be paid by Local 728, Stroud discussed with the local executive board the possibility of Local 728 paying for the alternate delegates to attend. Both alternate delegates were on the Local 728 Unity slate. Speaking on behalf of Stroud, an attorney contacted our investigator and observed that the proposal would cost Local 728 members no more than had the local been obligated to pay the expenses of all of its delegates. The executive board rejected Stroud's proposal. Black claims that Stroud would not have made the request had another slate's alternate delegates won.
The next day, at Local 728's general membership meeting, Stroud took his request to the membership and asked them to decide whether to pay the alternate delegates' expenses. After procedural disputes regarding the appropriateness of Stroud's request, the membership in attendance at the meeting voted to pay the convention attendance expenses of the alternate delegates as guests of the local.
Analysis
Article II, Section 4(a) of the Rules provides that the Election Administrator will approve local union plans with such modifications as may be determined to be necessary and appropriate. Item 5(d) of the plan requires local unions to determine, before the election, whether the local union will pay alternate delegates' expenses. This is an explicit requirement under Section 4(b)(9) of the Rules. The Election Administrator approved Local 728's plan on December 1, 2000. As approved, Item 5(d) was unchanged from the original submission. Nor was permission granted for this item to be subsequently modified. We accordingly find that Local 728 violated Article II, Section 4(a) and 4(b)(9) of the Rules by materially modifying its local union plan without approval of the Election Administrator.
By stating in its local union plan that the expenses of alternate delegates would not be paid, the local union informed its members of this fact, which then could be considered by each of them in deciding whether to mount a candidacy for alternate delegate. As a matter of fairness, it ill behooves the local union to change this provision of its plan after the fact, and without permission of the Election Administrator. To allow a local to do so would encourage changes in the rules of the game post-election, to the detriment of those members who might have chosen to run for alternate delegate had they known their travel expenses would be subsidized.
We reach this conclusion without resolving Black's claim that the local's change in position was in furtherance of Stroud's political motives. The result here is dictated not by any actual political manipulation by Stroud, but instead by the inherent invitation to such manipulation if such after-the-fact unilateral modifications in local union plan provisions were allowed. For the same reason, we find irrelevant the fact that the change in the convention expense policy may not add to Local 728's planned convention costs, due to the above-referenced appointments of Stroud and Parker. The result here is required to avoid post-election changes to policies that may have affected who ran for alternate delegate, not to avoid costing local unions additional funds.[1]
Based on the foregoing, we GRANT the protest.
Remedy
When the Rules have been violated, the Election Administrator "may take whatever remedial action is appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Administrator considers the nature and seriousness of the violation, as well as its potential for interfering with the election process.
Based on the foregoing, we will not permit a modification of Local 728's local union plan to permit the payment of alternate delegates' expenses. Instead, we order Local 728 not to pay the expenses of any alternate delegates to attend the convention.
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 (February 13, 1996).
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 (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 329
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 728
2540 Lakewood Avenue SW
Atlanta, GA 30315
Richard Black
IBT Local 728
2540 Lakewood Avenue SW
Atlanta, GA 30315
Waymon Stroud, Sr.
3766 Occidental Way
Decatur, GA 30034
Donald Scott
104 New Hope Road
McDonough, GA 30252
J. Griffin Morgan
Elliot, Pishko, Gelbin & Morgan
426 Old Salem Road
Winston-Salem, NC 27101
Robert Baptiste
Baptiste & Wilder, P.C.
1150 Connecticut Ave. NW
Suite 5000
Washington, DC 20036
[1] No different result is dictated here by the fact that the alternate delegates' expenses are to be paid under the guise of their being guests of the local. In either case, the expenses of the alternate delegates are being paid, contrary to the provisions of the local union plan.