IN RE: CHARLES RICHARDSON II, Protestor.
Protest Decision 2006 ESD 239
Issued: May 12, 2006
OES Case No. P 06 200-030606-MW
Charles Richardson II, a member of Local Union 486 and a candidate for delegate, 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 a) the principal officer of Local Union 486 intimidated the protestor and another candidate on the protestor's slate on separate occasions by trying to talk them out of running against his slate, b) the nominations meeting was held at an inconvenient time for most of Local Union 486 members, and c) the ballot slate placement lottery was not fairly conducted.
Election Supervisor representative Joe F. Childers investigated the protest.
Findings of Fact and Analysis
1. Alleged retaliation and threats.
Protestor Richardson alleged that on February 8, 2006, Dan Fussman told Local Union 486 principal officer Dave Robinson that he intended to run for delegate. Robinson allegedly replied to Fussman that he "shouldn=t do that."
Richardson also alleged that at the local union's nominations meeting held March 5, 2006 Robinson made numerous comments to Richardson "that could only be intended to intimidate or threaten me." Richardson told our investigator that that Robinson asked him privately why he was running for delegate, stating, "I doubt you'll get 30 votes." In reply, Robinson said, "We are running because we have a 50-50 shot." Robinson rejoined, "It=s more like 70-30."
The protestor alleged that Robinson's comments violated Article VII, Section 12(g), which prohibits retaliation or threat of retaliation. We reject this contention. To establish a violation of this provision, the evidence must demonstrate that 1) the alleged victim engaged in activity protected by the Rules, 2) the charged party took adverse action against the alleged victim, and 3) the protected activity was a motivating factor in the adverse action. Cooper, 2005 ESD 8 (September 2, 2005). Here, the decision of Fussman and Richardson to run for delegate or alternate delegate was protected activity. However, no evidence was presented that they suffered adverse action as a result. Even if proved, Robertson's alleged advice to Fussman not to run and his alleged prediction that Richardson would lose the election fall well short of the conduct necessary to establish adverse action because they do not convey the "palpable threat of actual harm" that our precedents require. Ostrach, 2000 EAD 57 (December 6, 2000), aff'd, 01 EAM 15 (January 19, 2001); Echeveria, 2006 ESD 66 (February 3, 2006). Accordingly, we DENY this aspect of the protest.
2. Alleged inconvenient time for nominations meeting.
The local union's nominations meeting was held at 1:00 p.m. on Sunday, March 5. Earlier that day, the monthly general membership meeting was held at 10:00 a.m. and concluded at approximately 10:25 a.m. Richardson alleged that the nominations meeting was inconvenient for those members who attended the general membership meeting, as they had to wait a lengthy period for the nominations meeting began.
The nominations meeting was held at the date and time Local Union 486 proposed and we approved in the local union election plan. That plan was available for comment following September 29, 2005, when it was first submitted to our office. No comment was submitted asserting that the time proposed for the nominations meeting was inconvenient or would discourage attendance. The instant protest, filed the day of the nominations meeting, should have been submitted as a comment on the local union election plan in October 2005. Accordingly, we DENY the protest as untimely filed under Article XIII, Section 2(b) of the Rules.
3. Allegedly unfair ballot placement lottery.
Two slates competed in the local union delegate and alternate delegate election. Under Article II, Section 10(b) of the Rules, "[t]he order of placement of the slates on the ballot shall be determined by lot." The essential element of an acceptable lottery is a chance or random means of selection. The lottery methods that would satisfy this element include coin toss, draw of cards, draw of names, and others. The local union chose to draw names from a pan. Richardson alleged that a coin toss would have been more fair1, asserting that the draw could have been "fixed." Richardson presented no evidence that the draw at issue here actually was fixed or otherwise lacked integrity, and our investigation found none. Accordingly, we DENY this aspect of the protest.
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
885 Third Avenue, Suite 1000
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 Office of the Election Supervisor for the International Brotherhood of Teamsters, 1725 K Street, Suite 1400, N.W., Washington, D.C. 20006, 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 239
1 Problems can attend a coin toss. See Plouffe, 2001 EAD 367 (May 16, 2001), where the coin hit an election committee member "in the head, ran down his back and hit the floor, turning up 'tails.'" The Election Administrator denied the protest from the candidate with "heads," finding no "reason based on fundamental fairness why we should make it best two out of three."
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
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
blmharvey@sbcglobal.net
Ken Paff
Teamsters for a Democratic Union
P.O. Box 10128
Detroit, MI 48210
ken@tdu.org
Daniel E. Clifton
Lewis, Clifton & Nikolaidis, P.C.
275 Seventh Avenue, Suite 2300
New York, NY 10001
dclifton@lcnlaw.com
Stephen Ostrach
1863 Pioneer Parkway East, #217
Springfield, OR 97477-3907
saostrach@gmail.com
Charles Richardson II
1054 E. Pine River Road
Midland, MI 48640
Dave Robinson, Secretary-Treasurer
IBT Local Union 486
805 Bridgeview South
Saginaw, MI 48604
William Broberg
1108 Fincastle Road
Lexington, KY 40502
wcbroberg@aol.com
Joe F. Childers
201 West Short Street, Suite 310
Lexington, KY 40507
childerslaw@yahoo.com
Jeffrey Ellison
510 Highland Avenue, #325
Milford, MI 48381
EllisonEsq@aol.com