ELECTION APPEALS MASTER
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IN RE: DAN MATTHEWS, 2015-2016 EAM 20 (KAR)
DECISION RE 2016 ESD 187
PROTESTOR.
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Protest Decision 2016 ESD 187 (ESD 187), denying a protest by Dan Matthews (OES Case No. P-176-021216-ME), a member of Local Union 100, was issued on Wednesday, May 4, 2016, via email, at 5:50 pm. On Saturday, May 7, 2016, Mr. Matthews submitted an appeal of ESD 187 at 7:28 am, also via email. On May 9, 2016, the Election Supervisor moved to dismiss the appeal as untimely, and for failure to specify the basis for the appeal.
A telephonic hearing on the motion to dismiss was held on May 12, 2016. The following individuals attended the hearing: Mr. Matthews, Sam Bucalo, Secretary-Treasurer of Local Union 100, Dave Webster, President of Local Union 100, Ron Butts, a member of Local Union 100, Jeffrey J. Ellison, Esq., on behalf of the Election Supervisor (OES), David J. Hoffa, Esq., on behalf of the Hoffa Campaign.
Timeliness
Article III, Section 2(i) permits a protestor to take an appeal of the decision “within two (2) working days.” Article XIII, Section 2(j) declares that “[i]f no timely appeal is taken from the determination of the Election Supervisor …, that determination shall become final and binding.”
Mr. Matthews contends that because ESD 187 was issued after 5pm, it should be deemed issued on May 5, 2016. He further argues that the term “working day” should take account of the fact that he works an evening shift, and therefore could not have seen the Election Supervisor’s determination until he returned home on the morning of May 5, 2016. He therefore argues that the submission of his appeal on May 7, 2016, was “within two (2) working days.”
I disagree. It would be entirely impracticable to calculate the timeliness of every appeal based upon the hour of its issuance by email or the work schedule of the protestor. For purposes of the application of the Rules, I find that the transmission of a determination of the Election Supervisor by email must be treated like a postmark, which definitively establishes the date of mailing, regardless of the time the communication was delivered to a post box, e.g. after business hours.
Basis of the Appeal
On May 7, 2016, Mr. Matthews sent an email stating. “Please let this serve as timely notice of my intention to appeal this erred decision by the Election Supervisor.” The email does not identify any error as a basis for the appeal. Article XIII, Section 2(i) requires that the appeal “shall specify the basis for the appeal.”
Election Appeals Master Conboy explained the rationale underlying the appeal statement rule when he dismissed the appeal in Webb, 11 EAM 16 (February 4, 2011):
An appellant in protest proceedings must identify in writing in advance of the scheduling of hearing the substance of his complaint about the record, conduct or analysis underlying the disposition of a protest by the Election Supervisor under the Election Rules. To deviate from this prudent and time honored requirement would render appeals hearings excessively imprecise, interminable and ultimately unfair. (Original emphasis.)
In Gammon, 2011 EAM 19 (February 16, 2011), the Election Supervisor moved to dismiss the appeal because the appeal’s mere statement that “the ruling is contradictory to the facts” did not specify any “complaint about the record, conduct or analysis” underlying the Election Supervisor’s protest decision on which the appeal was based; accordingly, the Election Supervisor argued that he could not effectively respond to or prepare for an appellate hearing on such a vague statement. The Election Appeals Master agreed, dismissing the appeal because it “indisputably fails to set forth an adequate statement explaining why the case was wrongly decided.”
Mr. Matthews has not provided any basis to depart from this rule. At the hearing on the motion to dismiss, Mr. Matthews challenged the Election’s Supervisor’s findings regarding the timing of a disciplinary decision that was the subject of his protest. Based upon his presentation at the hearing on the motion to dismiss, I find that Mr. Matthews had sufficient information at the time he received ESD 187 to specify the basis for his appeal, and therefore had no excuse for failing to comply with the Rules.
For the above reasons, the appeal of ESD 187 is DISMISSED as untimely, and for failure to specify the basis of the appeal.
SO ORDERED.
/s/___________________________________
KATHLEEN A. ROBERTS
ELECTION APPEALS MASTER
DATED: May 13, 2016