IN RE: ERIC KING, Protestor.
Protest Decision 2005 ESD 42
Issued: December 28, 2005
OES Case No. P-05-050-121605-SO
Eric King, a member of Local Union 767, filed a pre-election protest pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). He alleged that Gerald Thompson, principal officer of Local 767, failed to post the required notice concerning the local union plan, in violation of the Rules.
Election Supervisor representative Dolores Hall investigated this protest.
Findings of Fact
The protest alleged that principal officer Thompson did not post a notice that the local union plan for election of delegates and alternate delegates had been submitted to our office as required by the Rules. Notice of the plan submission was never posted: the first item posted was a summary of the local union plan, and that posting occurred on December 12, 2005, after the local union plan had been approved and more than two months after the notice of plan submission should have been posted.
Thompson admitted the failure to post to our investigator. He explained that he was unaware he was required to post the notice and, further, was unaware until contacted by our office that he was required to post notice of the nomination meeting.
The protestor asserted that the delayed posting was the first notice he had that the nomination meeting is scheduled to occur on January 7, 2006. He stated that the delay in posting prejudiced his rights as a candidate in two substantial ways. First, the posting was made after expiration of the comment period and after the local union plan had been approved by our office. Had the notice of submission been timely posted, the protestor claimed he would have sought a change in the date of the nomination meeting from January 7 to a later date. The protestor explained that he and others who potentially would campaign together as a slate are employees of UPS. The year-end holiday period is an especially busy time and the protestor asserted that it is difficult to organize a slate and a nomination strategy during this time because others potentially interested in candidacy are working long hours and cannot be reached to discuss the matter. The protestor states that he and others would have sought to move the nomination meeting to a later date.
The protestor's second claim of prejudice is related to the first. Because the nomination meeting is scheduled to take place just three weeks after the local union first posted notice of any kind related to the election, the protestor is in a poor position to form a slate and coordinate a campaign strategy.
Analysis
Article II, Section 4 of the Rules provides:
(c) Once a Local Union Plan is submitted to the Election Supervisor, the Local Union shall make the complete Plan available for inspection by the International Union, any subordinate body, any member of the Local Union submitting the plan and any candidate for International office. In addition, each of the foregoing shall have the right to obtain, upon request, a copy of the plan from the Local Union at no cost.
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(e) As soon as possible, but in no event later than five (5) days after the Local Union has submitted its Plan to the Election Supervisor, the Secretary-Treasurer of the Local Union shall post a notice (on a form promulgated by the Election Supervisor) on all Local Union bulletin boards advising that the Local Union Plan has been submitted to the Election Supervisor and further advising members of their rights under Subsections (c) and (d) above and shall maintain such posting until replaced by a posting of the Plan Summary.
As we said in Fahey, 2005 ESD 10 (September 8, 2005), "[l]ate notices or missing postings will not result in a Rules violation in the absence of bad faith on the part of the local union or disadvantage to any potential candidates." Lefevre, 2001 EAD 301 (April 12, 2001), citing Wenham, 2001 EAD 221 (March 7, 2001), Snow, P368, (March 6, 1996), and Young, P426 (March 29, 1996).1
Whether the principal officer's failure to post the notice of submission of the local union plan to our office was the result of bad faith on his part is not relevant to this protest; instead, we must assess whether his failure served to disadvantage potential candidates. We find that it did.
We accept the protestor's claims that he has been prejudiced as a candidate by the combination of the delayed posting of notice of submission of the local union plan to our office and the close proximity of the nomination meeting date to the year-end holiday rush period at UPS. The January 7 date scheduled for the nomination meeting would be insufficient, standing alone, to cause us to find disadvantage because, had the posting of the submission of the plan been made when required, members considering candidacy would have had more than three months' notice of the nomination meeting and could have commenced planning their campaigns before the year-end rush. However, the posting of submission of the local union plan here came in the midst of the busy season at UPS and, as a consequence, substantially limited the protestor's opportunity to develop a coordinated nomination strategy with other potential candidates. As we said in Johnson, 2005 ESD 36 (December 14, 2005), "the Rules rely upon local union officers to provide information to the membership, and we do not countenance conduct - even if innocent - that undermines 'fair, honest, open, and informed elections.' Article I (emphasis supplied). By his omissions, the local [secretary-treasurer] deprived his membership, and protestor [King] in particular, of the opportunity to comment on the local union plan" and to begin planning campaign strategy. Accordingly, we GRANT the protest.
Remedy
When the Election Supervisor determines that the Rules have been violated, he "may take whatever remedial action is deemed appropriate." Article XIII, Section 4. In fashioning the appropriate remedy, the Election Supervisor views the nature and seriousness of the violation as well as its potential for interfering with the election process.
To remedy the disadvantage to potential candidates that the delayed posting of notice of submission of the local union caused, we amend the local union plan in the following particulars: 1) the nomination meeting will be conducted on Saturday, January 28, 2006; 2) notice of the nomination meeting will be posted on all union bulletin boards under the jurisdiction of Local Union 767 and mailed to all members no later than Friday, January 6, 2006; 3) ballots will be mailed to all members on Wednesday, March 1, 2006; 4) counting of ballots shall be conducted on Saturday, March 27, 2006. All other requirements of the local union plan approved by our office shall remain unchanged, including the requirements to submit affidavits demonstrating that actions required by the foregoing deadlines have been completed. The Election Supervisor's staff will supervise compliance with each of these deadlines. DePietro, 2001 EAD 77 (January 3, 2001).
As further remedy, we order local secretary-treasurer Thompson, within five (5) days of the issuance of this decision, to read and familiarize himself with his obligations under the Rules, including those set forth in Articles II, V, VI, VII, IX and XI, and to submit an affidavit of compliance to our office upon completing this remedy. Johnson, supra.
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 Supervisor 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 the parties, as well as upon the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, N.W., Suite 1400, Washington, D.C. 20007-5135, all within the time prescribed above. A copy of the protest must accompany the request for hearing.
Richard W. Mark
Election Supervisor
cc: Kenneth Conboy
2005 ESD 42
1 The Election Supervisor's IBT Local Union Manual for Conducting Delegate Elections provides instructions for local unions on posting requirements and provides sample forms. A copy of the manual was mailed to each IBT local union in the summer of 2005.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Patrick J. Szymanski
General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, N.W.
Washington, D.C. 20001
pszymanski@teamster.org
Bradley T. Raymond
Finkel, Whitefield, Selik, Raymond, Ferrara & Feldman
32300 Northwestern Highway
Suite 200
Farmington Hills, MI 48334
braymond@fwslaw.com
David J. Hoffa, Esq.
Hoffa 2006
30300 Northwestern Highway, Suite 324
Farmington Hills, MI 48834
David@hoffapllc.com
Barbara Harvey
645 Griswold Street
Suite 3060
Detroit, MI 48226
barbaraharvey@comcast.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Stefan Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Judith Brown Chomsky
P.O. Box 29726
Elkins Park, PA 19027
jchomsky@igc.org
Eric A. King
2904 South Park Lane
Fort Worth, TX 76133
eking2904@hotmail.com
Gerald Thompson
Secretary-Treasurer
IBT Local Union 767
6109 Anglin Drive
Forest Hill, TX 76119
Dolores C. Hall
1000 Belmont Place
Metairie, LA 70001
Hall1000@bellsouth.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com