IN RE: PAUL QUEZADA, Protestor.
Protest Decision 2006 ESD 50
Issued: January 24, 2006
OES Case Nos. P-06-058-011106-FW and P-06-074-011906-FW
Paul Quezada, a member and delegate candidate of Local Union 572, filed two pre-election protests pursuant to Article XIII, Section 2(b) of the Rules for the 2005-2006 IBT International Union Delegate and Officer Election ("Rules"). In OES case number P-06-058-011106-FW, Quezada alleged that the local union violated the Rules by refusing to accept the slate declaration form he attempted to file. In OES Case No. P-06-074-011906-FW, Quezada alleged that the local union failed to give proper notice of or conduct a lottery for determining the order in which slates would appear on the ballot for the delegate and alternate delegate election.
Election Supervisor representative Michael Four investigated these protests.
Findings of Fact
Local Union 572 held its nomination meeting on Wednesday, January 4, 2006. The candidates on the Rick Middleton slate were nominated from the floor. In addition, five candidates for delegate were nominated in writing, including protestor Quezada and Armando Farias, Jr., Frank Halstead, Rusil Lopez, and Luis Ramos. Immediately following the nominations meeting, a candidates meeting was held. At this latter meeting, a lottery was conducted to determine the order in which the independent candidates would appear on the ballot. In addition, an oral announcement was made indicating that a second lottery would be held on Sunday, January 8, to determine the order that slates would appear on the ballot, if more than one slate was formed by that date. None of the independent candidates were advised of either of these lotteries, as they did not attend the nominations meeting.
On Thursday, January 5, Quezada learned that other independent candidates had been nominated. He then organized a meeting of these candidates to form a slate. The meeting was held on Friday, January 6, and the candidates signed a slate declaration form on that date to form the "Teamsters for Change" slate.
No slate lottery was conducted on Sunday, January 8, as it was unnecessary. By that date, the local union was aware of the existence of only one slate.
On Monday, January 9, Quezada took the slate declaration form that was signed on January 6 to the local union hall to file it. Dennis Watson, president of the local union, told Quezada that he could not accept the form because it was untimely. Watson explained that the form was due no later than the third day after the nomination meeting and should therefore have been submitted by Saturday, January 7. Watson acknowledged that the local union was not open on January 7 but stated that Quezada could have faxed or mailed the form or placed it in the local union's mail slot so that it was received by that date, even though no local union officer or employee was present to receive it. Quezada replied that he believed he had to hand-deliver the form because it contained a space for the signature of local union secretary treasurer to acknowledge receipt of the form. Ultimately, Watson took the form and date-stamped it, while maintaining that the form was untimely filed. At the same time, Watson gave Quezada a copy of the notice of nomination results that was posted on union bulletin boards under the local union's jurisdiction on January 8 and 9. This posting listed the Middleton slate and the five independent candidates, including Quezada. In addition, it stated that "[t]he independent candidates are listed in the order determined by the ballot position lottery conducted on January 4, 2006 immediately after the nominations meeting."
On January 11, Quezada filed the protest in OES Case No. P-06-058-011106-FW via email, alleging that the local union violated the Rules by rejecting as untimely the slate declaration form he attempted to file on January 9.
On Friday, January 13, the local union's lawyer wrote to all candidates, enclosing the proof ballot and advising of certain observer rights. The observer rights indicated that "[a] second lottery, if necessary, will be held at Teamsters Local 572's Meeting Hall on Sunday, January 8, 2006, at 9:00 a.m." The notice of observer rights did not indicate the purpose of the "second lottery," only that it was scheduled to occur some five days before the date the local union sent the letter. In fact, the purpose of the second lottery was to determine ballot placement of slates, if more than one slate were formed. Quezada received the letter from the local union on Monday, January 16. He filed the protest in OES Case No. P-06-074-0111906-FW via email on Wednesday, January 18, at 10:52 p.m. PST,1 alleging that the local union failed to give proper notice of the ballot placement lotteries.
In response to these protests, the local union raises several procedural defenses. First, it contends that the protests should be denied because Quezada failed to supply a copy of them directly to the local union. In support of this contention, the local union cites Article XIII, Section 2(d), which requires all protestors to send their protests to "the Election Supervisor and the Union(s) involved."
The local union further contends that Quezada's second protest is untimely filed. In support of this position, the local union argues that Quezada knew by January 9 that a lottery had been conducted for independent candidates on January 4, yet he did not file the protest until January 19.
The local union also counters each protest on its merits. Thus, it argues that Quezada's slate declaration should not be accepted because it was not filed by the third day following the nomination meeting, as the Rules require. Further, the local union asserts that the Rules do not require it to give notice of ballot-placement lotteries at any time other than at the candidates' meeting that immediately follows the nominations meeting. Because Quezada and the other independent candidates did not attend the nominations meeting, the local union asserts that they waived notice of these lotteries.
Analysis
Article VIII, Section 1(c) provides in relevant part:
In the case of delegate and alternate delegate nominations and elections, such slate declaration shall be filed at the earliest possible date but in no event later than three (3) days after the Local Union's final delegate nominations meeting.
Definition 11 defines "day(s)" as "calendar day(s), unless otherwise specified." In Moyer, Election Officer Quindel enforced this time limit where the nomination meeting was held on Saturday, January 13, and the slate declaration form was filed on Thursday, January 18. In doing so, she rejected the contention that Sunday and Monday (a weekend day and a holiday, respectively) should not count in the computation of time.
The issue presented here is whether the three-day deadline of Article VIII will be enforced where the third day falls on a day that the local union is closed for business. On the facts presented here, we hold the deadline is extended to the next day that the local union is open for business. Here, that day was Monday, January 9, and the slate declaration form Quezada attempted to file that day therefore was timely.
In reaching this conclusion, we are conscious that officers and perhaps employees of the local union were present at the local's hall on Sunday, January 8. However, the deadline for filing slate declaration forms does not fall on that day because Quezada did not have actual notice nor should he reasonably have concluded that the local union was open that day. Cf. Fletcher & Caldwell, 2006 ESD 51 (January 24, 2006).
We reject the local union's procedural argument that the protest should be denied because of Quezada's failure to serve a copy of it on the local union. As a matter of practice, our office serves protests promptly on all interested parties, including local unions. We have never enforced the obligation codified in the Rules that the protestor serve the union, and we see no reason to do so now, given that the union is in no way prejudiced by the manner in which service is made.
Accordingly, we GRANT the protest in OES Case No. P-06-011106-FW.
Our decision in Quezada's first protest determines the result in the second. The date the local union selected for the lottery to determine ballot placement of slates was prior to the deadline for filing slate declaration forms. Because the slate lottery was premature, the Teamsters for Change slate was deprived of the opportunity to draw lots for ballot position, in violation of the Rules. Accordingly, we GRANT Quezada's second protest.
In reaching this conclusion, we reject the argument the local union advances that the protest was untimely filed. While Quezada may have been on notice as of January 9 that a lottery for ballot placement of independent candidates had already been conducted, he was unaware until January 16 that the slate lottery was scheduled for January 8. His January 18 protest was timely filed, based on the notice he received January 16.
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.
We order Local Union 572 to treat the slate declaration form filed in behalf of the Teamsters for Change slate as timely. We further order Local Union 572 promptly to conduct a lottery for ballot placement of the two competing slates, and to give advance notice of such lottery to all affected candidates as required by Article IX, Section 3 of the Rules.
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
2006 ESD 50
1 The protest we distributed to interested parties under cover of our letter dated January 19 shows that the protest was received via email on January 19 at 1:52 a.m. We have determined that the time of day is Eastern Standard Time. A copy of the protest was sent directly to our regional director, located in Seattle, WA. Her copy of the email was dated January 18 at 10:52 p.m.
DISTRIBUTION LIST (BY EMAIL UNLESS OTHERWISE SPECIFIED):
Bradley T. Raymond, General Counsel
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
braymond@teamster.org
Sarah Riger, Staff Attorney
International Brotherhood of Teamsters
25 Louisiana Avenue, NW
Washington, DC 20001-2198
sriger@teamster.org
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
Paul Quezada
781 East Casad Street
Covina, CA 91723
pquezada@MAIL.laspd.com
Rick Middleton, Secretary-Treasurer
IBT Local Union 572
450 Carson Plaza Drive
Carson, CA 90746
Michael Four
Schwartz, Steinsapir, Dohrmann & Sommers
6300 Wilshire Blvd., Suite 2000
Los Angeles, CA 90048-5202
mdf@ssdslaw.com
Christine M. Mrak
2357 Hobart Avenue, SW
Seattle, WA 98116
cmm@wmblaw.net
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com