IN RE: L.D. FLETCHER and POWELL CALDWELL, Protestors.
Protest Decision 2006 ESD 51
Issued: January 24, 2006
OES Case No. P-06-078-012006-AT
L.D. Fletcher and Powell Caldwell, respectively the president and secretary-treasurer of Local Union 509, 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"). The protest alleged that the slate declaration form of Jackie Parnell and John Collins was untimely filed.
Election Supervisor representative J. Griffin Morgan investigated this protest.
Findings of Fact
Local Union 509 held its nomination meeting on Friday, January 13, 2006. Parnell and Collins, although not present at the meeting, were nominated for the position of delegate. On Monday, January 16, Parnell telephoned Powell Caldwell, the local union's secretary-treasurer, seeking the form to be used to declare a slate of candidates. Caldwell told Parnell that he could obtain the form from the local union or from our website at ibtvote.org. Parnell said he would come to the hall that afternoon to get the form. During the same conversation, Parnell also asked Caldwell whether the three-day time limit for submitting the slate form was calculated in calendar or working days. Caldwell said he did not know but would try to find out. Caldwell did not contact Parnell to say that he had not been able to obtain the answer.
Following the call, Caldwell, who was not in the union hall when he spoke with Parnell, called the hall to tell the support staff to expect that Parnell would come in to pick up the slate form. Caldwell told staff where to find the form in his office. Caldwell then tried to find the answer to Parnell's question about how the deadline for filing slate forms was calculated. He called the agency retained by the local union to run the election; he also contacted our Washington, D.C. office. Both were closed that day for the Martin Luther King, Jr. holiday.
Despite telling Caldwell that he would pick up the slate form on Monday afternoon, Parnell did not do so. Parnell, who is not working because of an injury but nonetheless able to drive, offered our investigator no explanation for not making the twenty minute trip to the local that day, nor did he contact Caldwell or union staff to say he would not be in on Monday. Although January 16 was a federal and state holiday, the local union was open and fully staffed, and Caldwell told Parnell that someone would be there late to give him the form. Indeed, local president Fletcher was at the hall until 7:30 p.m.; Caldwell remained until after 10 p.m.
On Tuesday, January 17, Collins picked up the slate declaration form from the local union; he presented the completed form to secretary-treasurer Caldwell about an hour later.
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 protesters may rely on the three-day deadline of Article VIII and the provision in the Rules for calculating time using calendar days "unless otherwise specified" where the third day falls on a holiday on which the local is nonetheless open for business, the candidate knows the local is open, and the local union secretary-treasurer responded to a candidate's inquiry by stating he did not know how to calculate the three-day period. On the unique facts presented here, we hold that the protesters cannot rely on the Rules provision to reject the slate declaration as untimely when the secretary-treasurer told the candidate he did not know how to calculate the time, and did not tell the candidate to file the form on the third calendar day after the nomination meeting.
We emphasize that there is no general rule that applies to extend the time for filing slate declarations beyond three calendar days after the nomination meeting and that candidates are advised to comply with the rule as written. This ruling is limited to its unique facts, particularly the conversation between Parnell and protester Caldwell in which the candidate received an uninformative response from an officer about the deadline, with a promise to try to get a further response. There may be other unique circumstances that would justify extending the deadline beyond three calendar days, as when a local union is not open for business on the deadline date and so deprives the candidate of the full time allowed in the Rules for submitting a slate declaration. See Quezada, 2006 ESD 50 (January 24, 2006). We decline to elaborate on whether other hypothetical scenarios might justify an extension beyond three days for filing a slate declaration, but note that any such extension would have to be a very exceptional case.
Accordingly, we DENY the protest and hold that the slate declaration form submitted on behalf of candidates Parnell and Collins is timely filed and must be honored.
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 509 to treat the slate declaration form filed by Collins and Parnell as timely. We further order Local Union 509 promptly to conduct a lottery for ballot placement of the two competing slates not later than Friday, January 27, 2006, 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 51
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
L.D. Fletcher
903 Magnolia Bluff
Beaufort, S.C. 29902
:Powell Caldwell
7107 Cedarbrook Drive
Charlotte, N.C. 28215
Jackie Parnell
3 Hunt Cup Lane
Blythewood, S.C. 29016
John Collins
193 Lilly Lane
Loris, S.C. 29569
J. Griffin "Griff" Morgan
Elliot, Pishko, Morgan
426 Old Salem Road
Winston-Salem, N.C. 27101
jgmorgan@epmlaw.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com